Decision U.no.199/2008

U.no.199/2008

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 18 March 2009, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. Article 24-a in the part: “who is with a place of residence in the municipalities in which the rise in birth rate is under 2.1 living children per woman, and according to the data of the State Bureau of Statistics of the Republic of Macedonia, published for the preceding year” of the Law on Health Insurance (“Official Gazette of the Republic of Macedonia”, nos.25/2000, 34/2000, 96/2000, 50/2001, 11/2002, 31/2003, 84/2005, 37/2006, 18/2007, 36/2007, 82/2008 and 44/2008) IS REPEALED.

2. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

3. Upon the initiative submitted by Ismet Fetai from Gostivar, the Constitutional Court of the Republic of Macedonia with its Resolution U.no.199/2008 of 17 December 2008 instigated proceedings for appraising the constitutionality of the part in Article 24-a of the Law noted in item 1 of the present Decision.

The proceedings were instigated as there was a well-founded question raised before the Court regarding the concordance of the contested part in Article 24-a of the Law with the Constitution.

4. At its session the Court found that under the contested Article 24-a of the Law, special pecuniary remuneration for a living child is realised by the mother for bringing to life of a living child who is with a place of residence in the municipalities in which the rise in birth rate is below 2.1 living children per woman, and according to the data of the State Bureau of Statistics of the Republic of Macedonia, published for the preceding year.

5. Article 1 paragraph 1 of the Constitution of the Republic of Macedonia defines that the Republic of Macedonia is a sovereign, independent, democratic and social state.

Under Article 8 paragraph 1 line 8 of the Constitution, the fundamental values of the constitutional order of the Republic of Macedonia are humanism, social justice and solidarity, and under Article 9 paragraph 2 of the Constitution, all citizens are equal before the Constitution and laws.

Article 34 of the Constitution stipulates that citizens have a right to social security and social insurance, defined by law and collective agreement.

Under Article 35 of the Constitution, the Republic provides for the social protection and social security of citizens in accordance with the principles of social justice.

Pursuant to Article 39 of the Constitution, every citizen is guaranteed the right to health care, and the citizen has the right and duty to protect and promote his/her own health and the health of others.

Pursuant to Article 41 of the Constitution, it is a human right freely to decide on the procreation of children.

The Republic conducts a humane population policy in order to provide a balanced economic and social development.

Under Article 42 paragraph 1 of the Constitution, the Republic particularly protects mothers, children and minors.

From the noted constitutional provisions it arises that health insurance, as an element of the right of social insurance, has as its fundamental basis the determination of the Constitution under which the Republic provides for the social protection and social security of citizens in line with the principle of social justice, as well as the constitutional determination that humanism, social justice and solidarity are fundamental values of the constitutional order.

Taking as a basis the constitutional determination that rights of citizens in the sphere of social insurance are to be regulated by law and collective agreement, on the basis of the said constitutional principles, the Law on Health Insurance regulates the health insurance of citizens, the rights and obligations from the field of health insurance, as well as the manner of implementation of health insurance.

The Law regulates health insurance of citizens through the establishment of a compulsory and voluntary health insurance and within these frameworks are regulated the rights and obligations of these two types of health insurance.

Under Article 2 of the Law, compulsory health insurance is determined for all citizens of the Republic of Macedonia for the purposes of providing for health services and pecuniary remunerations on the principles of comprehensiveness, solidarity, equality and effective use of the funds under conditions defined by this Law, and voluntary health insurance is determined for the provision of health services that are not included in the compulsory health insurance.

Article 3 of this Law stipulates that compulsory health insurance is carried out by the Health Insurance Fund of Macedonia, which pursuant to Article 53 is established to that aim, the activity it carries out is of public interest, and it performs public mandates defined by this Law. In the part of the provisions in the Law that relate to the compulsory health insurance, Article 4 defines that insurees, in the sense of this Law, are insurees and the members of their family.

Pursuant to the contested Article 24-a of the Law, special pecuniary remuneration for a living child is realised by the mother for giving birth to a living child who has place of residence in the municipalities in which the rise in birth rate is below 2.1 living children per woman, and according to the data of the State Bureau of Statistics of the Republic of Macedonia, published for the preceding year.

The special pecuniary remuneration under paragraph 1 of this article is realised by the mother of a living child and it is paid for the period of nine months incessantly, and if she gives birth to several children at once (twins, three children or more) one year from the date of their birth in the amount of 30% of the average net salary paid per worker in the Republic of Macedonia announced for the current month.

The special pecuniary remuneration of paragraph 1 of this article is not paid in the cases when the mother of a living child has the right to a remuneration of a salary during her absence from work owing to pregnancy, birth and motherhood, pursuant to this law or that right is used by the father, pursuant to the regulations for working relations.

The special pecuniary remuneration of paragraph 1 of this article is provided for pursuant to the Programme for Special Pecuniary Remuneration for a Living Child which is adopted by the Government of the Republic of Macedonia, upon the proposal of the Ministry of Health.

The funds for the realisation of the Programme of paragraph 4 of this article are provided from the Budget of the Republic of Macedonia

According to what has been presented, the care of the Republic for social security and justness of citizens, in addition to the normative function for the exercise of the right, also covers provision of material and financial means as without the exercise of this component rights would be as a declaration without any value whatsoever, which makes the state also a social state.

Taking as the basis the content of the contested part in Article 24-a of the law, it arises that it actually does not provide for the equal treatment of the woman in the exercise of the right to pecuniary remuneration for a living child, for a reason that this right is prescribed only to women-mothers who have a place of residence in the municipalities in which the rise in birth rate is below 2.1 living children per woman, and which is defined according to the data of the State Bureau of Statistics of the Republic of Macedonia, published for the preceding year.

Namely, in the opinion of the Court the equality of citizens before the Constitution and laws defined in Article 9 of the Constitution should also be viewed in this context. The essence of this constitutional norm is its antidiscriminatory character which prohibits any privilege and form of advantage, inter alia, on grounds of the social status of the citizens. This right does not allow establishment of grounds for any differences whatsoever between people when they exercise certain rights of theirs. The contested provision also does not provide equal protection of motherhood and children as it is envisaged in Article 41 paragraph 1 of the Constitution of the Republic of Macedonia.

The contested part in Article 24-a of the Law goes beyond the sense and concept of the wholeness of the Law on Health Insurance which is established for all citizens of the Republic of Macedonia for the purposes of providing health care, inter alia, and on the principles of solidarity and equality, which means that the exercise of these principles may not depend on which municipality a person – mother to a living child – lives in, but the principle of justness is manifested in the very obligation of the state to prescribe and provide for equal benefits – privileges for all citizens equally, irrespective of which municipality they live in.

What the Court finds as undisputed is the fact that the legislator has a right to legally prescribe certain conditions, the manner and means for the exercise of the rights of health insurance and social care, and within these frameworks to determine the strategy such as the case with the rise in the birth rate envisaged in the contested Article 24-a of the Law, and all with a view to the state conducting a humane population policy. However, in the regulation of the relations the legislator is obliged to prescribe equal rights for the citizens irrespective of which municipality they live in, excluding any differences and discriminations whatsoever among the people when they exercise certain rights of theirs, thereby taking into consideration humanism, social justice and solidarity.

Pursuant to the contested legal provision, the legal solution that only mothers that have a place of residence in the municipalities in which the rise in birth rate is below 2.1 living children per woman have a right to a pecuniary remuneration for a living child, in the opinion of the Court is restriction of the exercise of the rights of health insurance of the persons-mothers that belong to the municipalities that are not included by the contested legal provision, which violates the principles of equality of the citizens before the Constitution and laws, social justness, equal protection of mothers and children, as well as the constitutional determination for humanism, social justice and solidarity as the fundamental values of the constitutional order of the Republic of Macedonia.

6. On the basis of the aforementioned, the Court decided as in item 1 of the present Decision.

7. The Court took the present decision in the following composition: Dr Trendafil Ivanovski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Branko Naumoski, Mr Igor Spirovski, Dr Gzime Starova, and Dr Zoran Sulejmanov.

Leave a Reply