Resolution U.no.137/2013

U.no.137/2013

On the basis of Article 110 of the Constitution of the Republic of Macedonia, Article 28 line 1 and Article 71 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 8 October 2014, the Constitutional Court of the Republic of Macedonia passed the following

RESOLUTION

1. NO PROCEDURE IS INITIATED for the appraisal of the constitutionality of Article 1 in the part: “the procedure for approval of termination of pregnancy”, Article 3 paragraph 2 in the part: “with written consent of the parent”, Article 3 paragraphs 4 and 5, Article 4 paragraph 1 in the parts: “paragraphs 4 and 5 of Article 3” and “and before the expiration of one year from previous termination of pregnancy”, Article 4 paragraph 3, title III “Procedure for approval and execution of termination of pregnancy” in the part: “for approval”, Article 6 paragraph 1 in the parts: “written” and “in a form and content as determined by the Minister of Health”, Article 6 paragraph 2 in the parts:”the application” and “and other required documentation defined in Article 9 paragraph 3 of this Law”, Article 6 paragraph 3 in the part: “is obliged:, Article 6 paragraphs 4, 5, 7 and 8, Articles 7 and 8, Article 9 in general and in particular paragraphs 2 and 3, Articles 10, 11, 12, 13, 14 and 15 and Chapter VII – Penal provisions with Articles 36 and 37 of the Law on Termination of Pregnancy (“Official Gazette of the Republic of Macedonia”, nos.87/2013, 164/2013 and 144/2014).

2. The application in the part of the request to initiate a procedure for the appraisal of the mutual accordance of individual contested provisions of the Law on Termination of Pregnancy with provisions of the same Law, with: the Convention of the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of Persons with Disabilities, with the Optional Protocol to the Convention, the Convention on the Protection of the Rights of the Child, the European Convention on Human Rights and the International Covenant on Civil and Political Rights, and with the Law on Health Care, the Law on Protection of Patients’ Rights and the Law on Records in the Health Field IS DISMISSED.

3. Karolina Ristova-Asterud; the Association of Citizens H.E.R.A., association for health education and research; the Coalition “Sexual and Health Rights of Marginalised Communities”; the Association of Citizens Reactor-Research in Action; and the Helsinki Committee for Human Rights, all from Skopje, filed an application to the Constitutional Court of the Republic of Macedonia for instigation of proceedings to appraise the constitutionality of the contested provisions and parts of provisions from the Law on Termination of Pregnancy noted in item 1 of this Resolution.

– The application regarding the disputed part of Article 1 of the Law states that it created a possibility of state interference into the right of choice and free decision-making of the woman, which was contrary to Article 41 paragraph 1 and Article 118 of the Constitution. This for a reason that the woman’s right to make decisions about having children is a constitutionally guaranteed right, which means having an affirmative right (to have children) and a negative right (not to have children), which was guaranteed in Articles 12 and 16 of the Convention on Elimination of All Forms of Discrimination against Women. These guaranteed rights were not subject to any approvals of someone who was out and under the Constitution including the state and its legislative and executive powers. Indeed, Article 2, paragraph 1 of the Law reaffirmed this right in a way that defined termination of pregnancy as a separate medical intervention, for which the pregnant woman was free to decide. Hence, this freedom was supposed to be protected and should not be subject to the procedure for approval for termination of pregnancy.

– In that sense, the impugned part of Article 1 of the Law was contrary not only to the Constitution, but also to Article 2, paragraph 1 of the same Law. – With regard to the disputed part of Article 3, paragraph 2 and Article 9, paragraph 2 of the Law, the initiative states that they were contrary to Article 9, Article 11 paragraph 1, Article 39 paragraph 2 and Article 41 paragraph 1 of the Constitution. The right to freely decide on the procreation of children and the right to protect and promote one’s own health were in accordance with the Convention on the Rights of Persons with Disabilities and the Optional Protocol to the Convention from where the State had to guarantee them also to the minors and persons with disability. In this respect, health decisions that are taken by parents or guardians, without the participation of these persons, were unconstitutional and restricted these rights and were unconstitutional. The provisions were contrary to Article 4 of the Convention on the Protection of the Rights of the Child. The requirement for parental consent for abortion led to an increase in the number of illegal abortions among adolescents, which was also established by the Committee on the Rights of the Child (Kyrgyzstan, 2000).

According to the applicants, such provisions were contrary to Article 5, Article 6, Article 12, Article 23 and Article 25 of the Convention on the Rights of Persons with Disabilities, since the Convention in particular required the States to recognise legal capacity to persons with disabilities, for them to be able independently or with support to decide on their rights. In this sense, the Law had to guarantee women with disabilities the right to decide themselves to terminate their pregnancy, to take into account their opinion, and not put them in an unequal position with other women.

– Regarding the contested Article 3 paragraphs 4 and 5 of the Law, the application states that they were contrary to Article 8 paragraph 1 line 3, Article 11 paragraph 1, Article 39 paragraph 2 and Article 41 paragraph 1 of the Constitution. This for reasons that the provisions directly and imperatively limited the constitutional right of women to freely decide on the termination of pregnancy. Thereby, the limitation referred to in paragraph 4 reportedly was aimed at protection, and that referred to in paragraph 5 was administrative and arbitrary, even without indicating at all the teleology of the provision, that is, without specifying the aim or a good that was protected by the limitation.Under Article 11 paragraph 1, Article 39 paragraph 2 and Article 41 paragraph 1 of the Constitution, female citizens had sovereignty over themselves, their life, physical integrity and health. In this sense, the decision of the European Court of Human Rights Tysiac v.Poland is invoked and it is concluded that the State and the legislator had no constitutional ground and authority to directly and immediately suspend the will of the woman and demonstrate allegedly greater concern for her health than she herself. The provisions restricted the legal capacity of women, a guradian was imposed to them who decided in advance what was better for the health of the woman, and for that reason the provisions were imperative. Hence, the right to choice referred to in Article 4 of the Law had to be provided for also in the disputed paragraphs 4 and 5 of Article 3, which was not the case here.

In support of these allegations the provisions of the Law on Protection of Patients’ Rights (lex generalis) were also invoked, and in particular Article 14, under which it was established that the patient has the right to accept or refuse certain medical intervention, except in cases where the delay of intervention would jeopardize the life and health of the patient and could cause temporary or permanent damage to his health. Hence, the impugned provisions violated Article 8 paragraph 1 line 3 of the Constitution and the Law on Protection of Patients’ Rights.

For the same reasons the disputed part: “and before the expiration of one year from the previous termination of pregnancy” of Article 4 paragraph 1 of the Law was to be constitutionally problematised.

– Article 4 paragraph 3 of the Law deprived the woman from the right to decide on her own on the termination of pregnancy after the tenth week with the fact that the right was conditioned with written consent and existence of a risk of more serious damage to the health or imminent danger to the life of the pregnant woman, unlike paragraph 1 of the same Article of the Law, where the legislator in affirmative terms stipulated exceptions, which was not the case with the disputed paragraph 3 of Article 4 of the Law. The deprivation of the right of any woman was also for situations when the pregnancy was the result of rape, incest, abuse of power and the like situations for which the UN Committee against Torture and Special Rapporteur on Torture assumed a stance that the restrictive legal norms could constitute torture, degrading and inhuman attitude, forcing a woman to give birth to a child conceived in such a way, and all in the name and benefit of allegedly “her health and life”. Hence, the provision was contrary to Article 11, Article 39 paragraph 2 and Article 41 of the Constitution.

– The title “Procedure for approval and execution of termination of pregnancy” of Chapter III is also challenged in the part: “for approval”, for a reason that the decision to procreate children, which included the right of termination of pregnancy, was not subject to approval, but only to realisation.

– The challenged parts of Article 6 paragraph 1, the disputed part “requirement” referred to in Article 6 paragraph 2, Article 6 paragraph 4 and Article 19 paragraph 2 of the Law were contrary to Article 8 paragraph 1 line 4, Article 25, Article 41 paragraph 1, Article 51, Article 61 paragraphs 1 and 2 of the Constitution.

The right to termination of pregnancy could not be conditioned by submitting a written application for the exercise of the right, for reasons that this right in its nature was enough to be exercised only through direct communication and consultation with the doctor who should make the medical intervention. This type of regulation did not facilitate the exercise of the right, but introduced administrative burdens, and as the application was linked with the expiration of time (ten weeks after conception) this was a violation of the dignity of women, enshrined in Article 25 of the Constitution.

Given that the Law governed the procedure for the exercise of this right, there was no basis for adopting bylaws with regard to the form and content of the application by the executive power. Hence, a clear intention of the executive power was to hamper and control the exercise of the constitutional right of women, which was sufficiently specified in the laws and medical protocols. This determination of the legislator was not in accordance with the general rights of patients defined by the Law on the Protection of Patients’ Rights, which did not provide for the submission of an application for a particular medical intervention. Consequently, the provisions were not in accordance with this Law either.

In that sense, the determination of the legislator referred to in Article 6 paragraph 4 of the Law, the content of the counseling of the pregnant woman to be prescribed by the Minister of Health in a separate act, without any specific legal framework, also led to interference of the executive power into the legislative power.

– The disputed part of Article 6 paragraph 2 of the Law was not in accordance with Article 8 paragraph 1 line 3, Article 9, Article 11, Article 25 and Article 41 paragraph 1 of the Constitution, for a reason that it introduced mandatory counseling prior to the termination of pregnancy, from where counseling constituted a condition for allowing termination of pregnancy, and it was also inconsistent with Article 2 of the same Law. The obligation brought them in an unequal position with other patients in connection with other interventions where no mandatory counseling was stipulated.

Mandatory counseling and waiting periods made abortion inaccessible, which led to violations of international human rights, according to the 2011 periodic report of the United Nations. In this direction were also other conclusions of other international health bodies, including the World Health Organization, under whose guidance of 2012 it shuld be ensured that women were not subject to mandatory counseling.

Anyway counseling had to be voluntary, confidential, optional, done by a trained person, whereby the information provided had to be accurate and easy to understand, to respect the personal choice, dignity, privacy and confidentiality. As a matter of fact, according to the European Court of Human Rights (P&S v. Poland) biased medical counseling, and dissemination of biased information violated the basic human rights of the pregnant woman. This was contrary to the case-law of the European Court of Human Rights, which had stated that the European Convention on Human Rights, and in this respect the Constitution of the Republic of Macedonia, were intended to guarantee rights that are practical and effective, not rights that are theoretical or illusory (Aires v.Ireland). The State was under a positive obligation to create a procedural framework that would allow a pregnant woman to effectively exercise her right of access to legal abortion (Tysiac v. Poland and PP v. Poland). Biased medical counseling, and dissemination of biased information by medical personnel was in violation of fundamental human rights.

The provision was contrary to Article 12 of the Law on Protection of Patients’ Rights, which stipulated that the patient had a right to refuse acceptance of information on his/her own health.

– The impugned Article 6 paragraph 3 in the part: “shall” in the Law was not in accordance with Article 9, Article 11, Article 25 and Article 41 of the Constitution. Namely, international standards in the field of sexual and reproductive rights required even when abortion was legal states not to impose constraints on the access of women to safe abortion. The World Health Organization and the European Court of Human Rights made clear that the women had to be provided with complete, accurate and understandable information about their pregnancy and access to safe abortion. All barriers led to increased levels of maternal mortality and morbidity. In this regard, the imposition of an obligation for the doctor to biased counseling was unconstitutional and contrary to the ratified international standards. If pregnancy was an advantage or risk was a matter of personal, emotional, social and cultural position of women in a given time and hence any interference with mandatory counseling was interference in the privacy of the woman, contrary to Articles 11 and 18 of the Constitution.

In this respect, the European Convention on Human Rights and the case-law of the European Court of Human Rights required positive obligation on States to create a procedural framework that would allow a pregnant woman to effectively exercise her right of access to legal abortion.

According to the applicants, the Court should have taken into consideration the high fines set out in Article 33 of the Law, and particularly its paragraph 3, because the high fines threatening doctors could influence their decision-making to not allow abortion. However, Article 33 of the Law is not subject to challenge in the application.

– Article 6 paragraph 7 of the Law was contrary to Article 8 paragraph 1 line 3 and Article 9 of the Constitution. This provision was supposed to be annulled because it allowed for direct discrimination against women by age and disability. Namely, the mandatory waiting period was defined only for women with legal capacity, whereby they were placed in an unequal position in relation to underage girls and women who had a disability, which additionally imposed on them emotional stress, financial and administrative barriers to the exercise of the right to decide on their own on termination of pregnancy.

This was contrary to the Convention on the Elimination of All Forms of Discrimination against Women and its Articles 2 and 12, for which reasons the Constitutional Court should have annulled the discriminatory provisions relating to women’s reproductive rights, defined by the legislator in the contested provisions.

– Article 6 paragraph 8 and Article 15 of the Law were contrary to Article 8 paragraph 1 line 3 and Article 9 of the Constitution, and as such had to be annulled. This is for reasons that they envisaged mandatory records of interventions for termination of pregnancy in the medical record of the pregnant woman, in the book of records, in the minutes of the committees, and in a special archive of the health institution, which was in contradiction with the domestic legislation and in particular with the Law the Records in the Health Field, as lex genaralis. In addition, these provisions violated the privacy of the woman and were contrary to a series of international standards, including Article 17 of the International Covenant on Civil and Political Rights. Namely, the State must not enact laws that interfere with the right of women to enjoy privacy. Such an example of violation of the privacy of women in view of their reproductive function was the legal obligation of physicians and other health workers to report cases that would be subject to abortion. In this regard, the Court should have annulled the provisions as contrary to Article 8, Article 9 and Article 118 of the Constitution and enabled the protection of women against such endangering of their privacy.

– Articles 7, 8, 9, 10, 11, 12, 13 and 14 of the Law were contrary to Article 8 paragraph 1 line 4, Article 50 and Article 51 of the Constitution, because it was not planned that the committees for approval of the termination of pregnancy to include lawyers and experts in the field of human rights, which was an additional indicator that the anticipated actions would be an obstacle to the exercise of the right of women to free choice, guaranteed by the Constitution. These committees had a special competence to decide on the exercise or restriction of the guaranteed freedom of women to decide on the procreation of children, as part of the executive power. However, the Constitution, in the cited provisions, defined that any citizen could invoke the protection of his/her rights and freedoms set out in the Constitution, before the courts and the Constitutional Court and the exercise of this right must not and may not be subject to any approval by someone outside and under the Constitution, including the State and its legislative and executive powers. With the fact that Article 14 of the Law stipulated that a decision of the second instance committee regarding pregnancy termination was final it arose that no court protection was envisaged for these guaranteed right and freedom, and hence this provision was in direct contradiction with Article 8 paragraph 1 line 4 and Article 50 of the Constitution.

– The contested Article 9 paragraph 1 of the Law was contrary to Article 8 paragraph 1 line 4, Article 50 and Article 51 of the Constitution. With regard to this provision the applicants cite Article 9 of the Constitution (but not explicitly require assessment regarding the compliance with Article 9) and they note that the procedure for termination of pregnancy was the only medical procedure for which, according to the legislation, it was required to submit in advance a written application and wait for its approval, which spoke that women were discriminated against men on the basis of sex. Then Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women is cited and it states that it was a fact that women were put in a disadvantageous position compared to men, because of the existing legal obligation to implement a procedure for obtaining approval for conducting medical intervention, which spoke that the legislator did not apply the cited provision of the Convention when adopting the disputed law. Thus, Article 118 of the Constitution was violated.

Additionally, the very fact that only for this medical intervention the legislator stipulated a written application (in a form unknown in the Macedonian health system) questioned the privacy of the woman, because without getting into the content of the application it was impossible to conceal the intention of the woman and automatically the entire facility would be familiar with the choice of the woman. The Macedonian Constitution, and international standards of human rights, indicated that the state had to ensure the enjoyment of the rights on an equal basis and in their totality. Therefore, the state had to ensure that men and women equally enjoy all rights under the Constitution. The fact that the written application entailed only women and only for termination of pregnancy put the woman in an unequal position and threatened her privacy.

– Chapter VII and Articles 36 and 37 of the Law were contrary to Article 8 paragraph 1 line 3 of the Constitution, because they were not different from the content of Article 129 of the Criminal Code (criminal offence of unlawful termination of pregnancy). Namely, the Law included only some of the criminal offenses that might arise in this case, and for some of the provisions a different penalty was prescribed than that provided for in the Criminal Code, which led to legal uncertainty and undermining of the rule of law. In this regard, the applicants believe that the Constitutional Court should annul these provisions to protect the rule of law and legal certainty and to ensure uniformity of the system in the Republic of Macedonia.

The Center for Reproductive Rights from New York, represented by Joanna Vesteson, the Regional Director for Europe, submitted a letter to the Constitutional Court of the Republic of Macedonia in support of the filed application.

4. At its session the Court established that under Article 1 of the Law on Termination of Pregnancy this Law governs the conditions under which pregnancy may be terminated, the procedure for approval of the termination of pregnancy, the conditions that are to be met by the health facilities for performance of the procedure for termination of pregnancy, and the supervision over the conditions and procedure for termination of pregnancy.

The provision is challenged in the part: “the procedure for approval of termination of pregnancy”.

Under Article 3 paragraph 2 of the Law, if the pregnant woman is a minor or deprived of legal capacity, the termination of pregnancy may be made until the expiration of ten weeks from the date of conception, with the written consent of the parent or guardian of the pregnant woman.

The provision is challenged in part: “the written consent of the parent”.

The written consent referred to in paragraphs 1 and 2 of this Article shall be expressed in the manner and form prescribed by the regulations for the protection of patients’ rights (paragraph 3).Pursuant to Article 3 paragraph 4 of the Law, termination of pregnancy may not be made before the expiration of ten weeks from the date of conception if it is particularly detrimental to the health condition of the pregnant woman.Under Article 3 paragraph 5 of the Law, termination of pregnancy may not be carried out if one year has not passed from the termination of the previous pregnancy.

In Article 4 paragraph 1 of the Law it is stipulated that, notwithstanding Article 3 paragraphs 1, 2, 4 and 5 of this Law, termination of pregnancy may be performed even after the tenth week from the date of conception, as well as before the expiration of one year from the prior termination of pregnancy, at the request and with the written consent of the pregnant woman in the cases when:

–  Based on medical indications it is established that a pregnancy is a danger to the life or will lead to severe damage to the health of the woman during pregnancy, childbirth or after delivery;

– On the basis of scientific knowledge it may be expected that the child will be born with a severe physical or mental defects;    – The conception occurred in connection with committing a crime: rape, sexual intercourse with disabled person, child sexual abuse, sexual abuse with misuse of position or incest; and                                                                                                             – It is established that during pregnancy or after delivery the woman could experience serous, personal family, material or other circumstances which will affect her health.

The provision is challenged in the parts: “Article 3, paragraphs 4 and 5” and “and before the expiry of one year from the previous termination of pregnancy”.

Paragraph 3 of the same Article of the Law stipulates that the termination of pregnancy referred to in paragraph 1 of this Article shall be performed if it is estimated that with the termination of pregnancy there will be no more serious damage to the health or imminent danger to the life of the pregnant woman and with a written consent referred to in Article 3, paragraph 3 of this Law.

Chapter III is entitled “Procedure for approval and execution of termination of pregnancy” and contains Articles 5 through 18. The title is contested in view of the part: “for approval”.

Article 6 paragraph 1 of the Act provides that for the termination of pregnancy of up to ten weeks the pregnant woman addresses the doctor who should terminate the pregnancy in writing in a form and content as determined by the Minister of Health.

The provision is challenged in the parts: “in writing” and “a form and content as determined by the Minister of Health”.

Findings from completed ultrasonographic examination, and medical and other required documentation as stated in Article 9, paragraph 3 of this Law is enclosed with the application referred to in paragraph 1 of this Article by the pregnant woman (paragraph 2).

The provision is impugned in the parts: “application” and “and other required documentation as stated in Article 9, paragraph 3 of this Law”.

Before the termination of pregnancy the doctor is obliged to advise the pregnant woman about the possible advantages of continuing pregnancy, as well as the risks when implementing or not implementing the intervention for termination of the pregnancy upon the health and life of the woman, the methods for performing the termination of the pregnancy, and to familiarise her with the opportunities and methods for prevention of the pregnancy (paragraph 3). The provision is challenged in part: “is obliged”.

The content and the advice referred to in paragraph 3 of this Article shall be prescribed by the Minister of Health with a separate act (paragraph 4).

If the pregnant woman after receiving the information remains at her request, she is obliged to provide a written statement of consent for acceptance of the implementation of the intervention for termination of pregnancy in accordance with Article 3 paragraph 3 of this Law (paragraph 5).

If the requirements of Article 6 of this Law are met the doctor may commence the termination of pregnancy (not challenged, paragraph 6).

The termination of pregnancy may not be performed before the expiration of three days following the advice referred to in paragraph 2 of this Article, unless it concerns an underage woman, a woman with suspended or limited legal capacity or if there is a justified medical indication for that, which the doctor must duly record in the medical documentation and records (paragraph 7).

The doctor keeps records in a book of records for the intervention performed under paragraph 6 of this Article, and he enters the data for the conducted intervention in the medical record of the pregnant women in written and electronic form, in accordance with the regulations for the protection of patients’ rights (paragraph 8).

Under Article 7 paragraph 1 of the Law, if the doctor finds that the termination of pregnancy is not allowed by the health condition of the pregnant woman, or that the termination of pregnancy will endanger the life or health of the woman, or the more than ten weeks have elapsed from the date of conception, he is obliged to refer the pregnant woman to the first instance committee for approval of the termination of pregnancy.

The first instance committee for termination of pregnancy is set up by the director of the health institution in which the termination of pregnancy is performed (paragraph 2).

The costs for the work of the first instance committee shall be borne by the health facility for which it is formed (paragraph 3).
The second instance committee shall decide on a complaint against the decision of the first instance committee (paragraph 4).
Article 8 paragraph 1 of the Law stipulates that the second instance committee is established by the Minister of Health at the level of the Republic of Macedonia.

The committees referred to in Article 7 paragraph 1 of this Law and paragraph 1 of this Article (hereinafter: committees) shall be established for a period of two years and shall consist of three members each – a doctor specialist of gynecology and obstetrics, a doctor specialist in internal medicine and a social worker. Committee members shall have deputies (paragraph 2).Members of the second instance committee may not be persons who are members of a first instance committee for termination of pregnancy, and the members of the first instance committee may not be persons who are members of the second instance committee (paragraph 3).

The costs for the work of the second instance committee shall be borne by the Ministry of Health (paragraph 4).

The chairman of the committees referred to in paragraph 2 of this Article, as a rule, is a doctor specializing in obstetrics and gynecology who is a member of the committee (paragraph 5).

Committees have a Secretary who is appointed when the committee is set up and he/she shall not be a member of the committee (paragraph 6).

The proceedings before the first instance and second instance committees is urgent (paragraph 7).

Article 9 paragraph 1 of the Law stipulates that the pregnant woman shall apply for termination of pregnancy in writing to the first instance committee.

If the pregnant woman is a minor or deprived of legal capacity, the application shall be filed, that is, consent for termination of pregnancy shall be given by the parent or guardian of the pregnant woman (paragraph 2).

Under paragraph 3 of the same Article of the Law, the application for termination of pregnancy is accompanied by medical and other documentation, as follows:
– Certificate from a doctor – specialist in obstetrics and gynecology that the woman is pregnant, that she is informed of the possible advantages of continuing pregnancy, as well as the risks of implementing or not implementing the intervention for termination of the pregnancy upon the health and life of the woman, the methods for performing the termination of pregnancy, as well as that she was familiarised with the possibilities and methods for preventing pregnancy; and
– Finding and opinion from a doctor – specialist in the appropriate branch of medicine that covers the disease of the pregnant woman, that is, the illness of the parent in the cases referred to in Article 4 paragraph 1 lines 1 and 2 of this Law, a certificate from the competent public prosecutor that criminal proceedings was initiated in the case referred to in Article 4 paragraph 1 line 3 of this Law, that is, a certificate from the center for social work or from the health facility if the pregnancy termination is requested for the reasons referred to in Article 4 paragraph 1 line 4 of this Law.

Under Article 10 paragraph 1 of the Law, the pregnant woman, that is if the pregnant woman is a minor or has lost her legal capacity, the pregnant woman and her parent or guardian at their request or at the request of the first instance committee attend the session of the first instance committee at which the application for termination of pregnancy is considered.

The session of the first instance committee may also be attended by the spouse at the request of the woman (paragraph 2).

Article 11 paragraph 1 of the Law stipulates that in the proceedings on the application for termination of pregnancy the chairman of the first instance committee is obliged to give information to the pregnant woman, and in the cases referred to in Article 9 paragraph 2 of this Law also to the parent or guardian of the pregnant woman on the possible advantages of continuing the pregnancy and the risks of implementing or not implementing the intervention for termination of the pregnancy upon the health and life of the woman, on the methods for performing the termination of pregnancy, as well as to familiarise her with the possibilities and methods for prevention of unwanted pregnancy, inform her of the existing health facilities where advice may be sought for prevention of pregnancy, as well as other useful information relevant to the decision-making on the application for termination of pregnancy.

If the first instance committee finds that the the pregnancy may be terminated is is obliged to request a written statement of consent from the pregnant woman for performing termination of pregnancy, that is, if the pregnant woman is a minor or has lost her legal capacity a written statement of consent for performing the termination of pregnancy from her parent or guardian (paragraph 2).

Article 12 paragraph 1 of the Law stipulates that the committees work at sessions with all members and decisions are taken by a majority vote of the total number of members of the committees.Committees are obliged to make a decision within three days: the first instance committee from the filing of the application for termination of pregnancy, and the second instance committees after being delivered the case on the complaint of the pregnant woman (paragraph 2).

If the deadline referred to in paragraph 2 of this Article may not be observed for justified reasons whose justification is established by the committees, the deadline for making a decision may not be longer than seven days (paragraph 3).

Under Article 13 paragraph 1 of the Law, termination of pregnancy may be performed without a decision of the committees, if due to an immediate danger to the life and health of the pregnant woman it cannot be waited for a decision or if started termination of pregnancy is at issue.

The doctor who performed or completed the termination of pregnancy without a decision of the committee shall, within 24 hours, inform the director of the health institution thereof, and the director shall, within three days, inform the first instance committee of the case (paragraph 2) .

Article 14 paragraph 1 of the Law stipulates that the decision of the first instance committee is conveyed to the pregnant woman, and in the cases referred to in Article 9 paragraph 2 of this Law to the parent or guardian of the pregnant woman as well, immediately after the conclusion of the session of the committee.

A complaint may be lodged against the decision of the first instance committee on the record immediately or in writing within three days after the announcement of the decision (paragraph 2).

The minutes of the complaint together with all the writs shall, without delay, be submitted to the second instance committee (paragraph 3).

The decision of the second instance committee is final (paragraph 4).

Article 15 paragraph 1 of the Law stipulates that the doctor keeps records in a book of records for the interventions for termination of pregnancy, that is, the committees keep book records about the held sessions and a book of records, in a written and electronic form.

The health institution is obliged to keep the documentation related to the work of the doctor on interventions for termination of pregnancy, that is, of the committees as a confidential medical record, in a separate archive of the health facility (paragraph 2).
Chapter VIII has a heading “Penal provisions” and contains articles 36 and 37.

Under Article 36 of the Law, a doctor who performs termination of pregnancy contrary to the provisions of this Law or in a health facility that does not meet the provisions of Article 19 of this Law shall be liable criminally and shall be punished with imprisonment from six months to three years.

Under Article 37 paragraph 1 of the Law, a health institution performing termination of pregnancy contrary to Article 19 of this Law shall be liable criminally and shall be punished with a fine and permanent revocation of the work licence. The director of the institution referred to in paragraph 1 of this Article, who allows termination of pregnancy in a medical institution that does not meet the requirements of Article 19 of the this Law shall be liable criminally and be punished with imprisonment from six months to three years (paragraph 2).

5. Pursuant to Article 8 paragraph 1 lines 3 and 4 of the Constitution, the fundamental values of the constitutional order of the Republic of Macedonia are the rule of law and the division of state powers into legislative, executive and judicial.

Under Article 9 of the Constitution, citizens of the Republic of Macedonia are equal in their freedoms and rights irrespective of their sex, race, colour of skin, national and social origin, political and religious belief, property and social status. Citizens are equal before the Constitution and the laws.

Under Article 11 paragraph 1 of the Constitution, physical and moral integrity of the person are inviolable.

Pursuant to Article 18 of the Constitution, the security and confidentiality of personal data are guaranteed. Citizens are guaranteed protection from any violation of their personal integrity deriving from the registration of information on them through the data processing.

Under Article 25 of the Constitution, each citizen is guaranteed the respect and protection of the privacy of his/her personal and family life and his/her dignity and repute.

Article 39, paragraph 2 of the Constitution stipulates that citizens have the right and duty to protect and promote their own health and that of others.

Under Article 41 paragraph 1 of the Constitution, it is the right of the man to freely decide on the procreation of children.

Pursuant to Article 50 of the Constitution every citizen may invoke the protection of freedoms and rights determibned by the Constitution before the regular courts, as well as before the Constitutional Court, in a procedure based upon the principle of priority and urgency.

Under Article 51 of the Constitution, laws in the Republic of Macedonia shall be in accordance with the Constitution and all other regulations in accordance with the Constitution and law.

Pursuant to Article 61 paragraph 1 of the Constitution, the Assembly of the Republic of Macedonia is a representative body of the citizens and the legislative power of the Republic is vested in it.

Under Article 118 of the Constitution, the international agreements ratified in accordance with the Constitution are part of the internal legal order and may not be changed by law.

The Law on Termination of Pregnancy regulates the conditions under which termination of pregnancy may be performed, the procedure for approval of termination of pregnancy, the conditions to be met by the health institutions to perform a procedure for termination of pregnancy and the supervision over the conditions and procedure for termination of pregnancy (Article 1).
Under Article 2 of this Law, termination of pregnancy is a special medical intervention for which the pregannt woman freely decides. The right to terminate the pregnancy may be limited only in order to protect the health and life of the pregnant woman.
– From the analysis of Article 41 paragraph 1 of the Constitution it arises that it guarantees the right of citizens to freely decide on the procreation of children.

According to the Court, this given right does not mean that the Constitution leaves the possibility to perform termination of pregnancy outside of any legally regulated procedure. In fact, the applicants themselves accept that termination of pregnancy is a special medical intervention, under Article 2 of the Law, and from there, as any other intervention carried out in a health institution termination of pregnancy is also subject to legal regulation. Hence, the Court considers that in the interest of protecting the health of the woman is the regulation of the conditions under which termination of pregnancy may be performed, the procedure for approval of termination of pregnancy, as well as the requirements to be met by health institutions that perform this special medical intervention. Otherwise, that is, in an absence of a legally regulated procedure for termination of pregnancy there is a high probability for termination of pregnancy to be performed by unskilled persons in inappropriate health and other facilities which questions the life and health of the woman.

Based on the above it appears that the disputed part of Article 1 of the Law is in accordance with Article 41 paragraph 1 of the Constitution.

– According to the applicants, the disputed part of Article 3 paragraph 2 and Article 9 paragraph 2 of the Law were contrary to Article 9, Article 11 paragraph 1, Article 39 paragraph 2 and Article 41 paragraph 1 of the Constitution, because they restricted the constitutional rights guaranteed in these provisions, since instead of minors and persons with disabilities to decide on their own to terminate the pregnancy, the decision to terminate the pregnancy was made by parents or guardians.

From the analysis of the contested provisions it arises that on behalf of a minor pregnant woman or a woman deprived of legal capacity written consent is given that is written application for termination of pregnancy to the first instance committee is filed by the parent or guardian, unlike others who give consent in person or file an application personally. Moreover, in the case of a minor pregnant woman and in the case of a woman deprived of legal capacity (requiring a final court decision) it is about persons who due to their specific condition are not able to form a sane opinion on their own and express it, and in terms of whether they want or do not want to terminate the pregnancy, to understand whether they need to terminate the pregnancy and in case they decide to terminate the pregnancy to understand what the possible consequences for their health are. These persons need special protection which is provided by the presence of a parent or guardian who gives consent or files an application for them, and they are legally and morally responsible for the actions taken on behalf of and account of their children or wards.

In this regard, Article 11 of the Law on Health Protection of Patients’ Rights (“Official Gazette of the Republic of Macedonia” no.82/2008) stipulates that a patient with permanently reduced ability for judgment, in accordance with his physical, mental and physological condition, as well as his/her guardian or legal representative have the right to information. Also of importance is the regulation in Article 14 paragraphs 1 and 2 and Article 15 paragraph 1 of the same Law, according to which the patient has the right to accept or refuse certain medical intervention, except in cases of medical intervention whose delay or non-performance would jeopardize the life or health of others or could cause temporary or permanent damage to his/her health or the health of others. The statement on behalf of a patient who is unconscious or is admitted to the institution without his/her consent, for persons without legal capacity and minors (except for immediate medical intervention) is signed by his/her parent, legal representative or guardian. In the interest of the patient once a given statement may be withdrawn at any time, in the same way that it was given.

Hence, in the impugned provisions the treatment of minors and persons without legal capacity in the procedure for termination of pregnancy is no different from the treatment for any other medical intervention, especially considering that people are concerned that lack sufficiently formed ability of reasoning for the consequences that could result from the continuation of pregnancy or its termination.

The impugned parts of Article 3 paragraph 2 and Article 9 paragraph 2 of the Law are in accordance with Article 9 of the Constitution, since minors and legally incompetent people are not in the same legal position with other women who are able to reason for the taking of all risks from termination or continuation of pregnancy. The principle of equality may be breached only when the same category of citizens is brought in an unequal position.

Based on the above, it arises that the disputed parts of Article 3 paragraph 2 and Article 9 paragraph 2 of the Law are in accordance with Article 9, Article 11 paragraph 1, Article 39 paragraph 2 and Article 41 paragraph 1 of the Constitution.

– The contested Article 3 paragraphs 4 and 5 and the disputed part of Article 4 paragraph 1 of the Law were contrary to Article 8 paragraph 1 line 3, Article 11 paragraph 1, Article 39 paragraph 2 and Article 41 paragraph 1 of the Constitution, since they directly and imperatively restricted the constitutional right of women to freely decide on the termination of pregnancy.

From the content of Article 41 paragraph 1 of the Constitution it stems that it stipulates a right to the individual to freely decide on the procreation of children. This inherent right, according to the Court, represents the right to a choice of the citizen whether to have children at all, and if he/she wants to have any to decide on their number, the time when he/she wants to become a parent, that is, complete freedom with respect to their own decision as to whether, when and how many children they will have. In that sense, the regulation of the procedure for termination of pregnancy allows the citizens to exercise this given constitutional right to family planning, but in the cases of termination of pregnancy after ten weeks from the date of conception or before the end of one year from the previous pregnancy, all with a view to protecting the health of the pregnant woman, the legislator generally does not allow this special medical intervention.

However, an exception to this prohibition for termination of pregnancy (after the tenth week and before one year from the last pregnancy) is possible in the cases expressly listed in Article 4 paragraph 1 (a danger to the woman’s life, severe damage to the health, expectation the child to be born with severe physical and mental deficiencies, conception is the result of a criminal offence, possibility for heavy personal or family circumstances for the pregnant woman and her health).

Hence, the general determination of the legislator not to allow termination of pregnancy after the tenth week or before the expiry of one year from the previous pregnancy, together with the exceptions to this prohibition envisaged in Article 4 paragraph 1 of the Law may not be said to be unconstitutional and that they were administrative and arbitrary restrictions whose purpose or protected good was not known. On the contrary, purpose of the contested provisions themselves, and the whole Law is to protect the health of the woman, that is, to endanger the same as less as possible.

It should also be borne in mind that pregnancy after the tenth week is a longer pregnancy, so the risk to the health of the woman if free termination of pregnancy is allowed, as advocated by the aplicants, is much higher. In termination of pregnancy before the expiry of one year from the previous pregnancy, the Court finds that the legislator found an optimum period, based on medical knowledge, that after this period the woman might terminate the pregnancy again without major risks to her health. Otherwise, a room would be left for multiple termination of pregnancy in one year which could have serious medical and health implications. Anyway, the exceptions referred to in Article 4 paragraph 1 of the Law amortise the prohibition in the contested Article 3 paragraphs 4 and 5, and all provisions are primarily aimed at protecting the health of the woman.

– Article 4 paragraph 3 of the Law was contrary to Article 11, Article 39 paragraph 2 and Article 41 of the Constitution.

From the analysis of the contested provision it arises that in the cases of pregnancy (the cases referred to in Article 4 paragraph 1) after the tenth week of the date of conception, the legislator has envisaged that termination of pregnancy will only take place if it is assessed that it will not lead to more severe damage to the health of the woman or imminent danger to the life of the pregnant woman. According to the Court, such conditioning (lack of danger for severe damage to the health of the woman) is an expression of the care of the state for the health of the woman, while the circumstance whether there is such a risk to woman’s health is determined by a medical specialist.

Hence, this challenged provision somehow interferes into the right of the individual to freely decide on the procreation of children when the pregnancy is the result of rape, incest, misuse of position, etc., but this constitutional right is not absolute and in this case the stipulated limit is an expression of the duty of citizens to protect and promote their own health set out in Article 39 paragraph 2 of the Constitution. However, the provision in no event has the character of coercion, but of an emphasized concern for woman’s health.

Accordingly, the disputed Article 4 paragraph 3 of the Law is in accordance with Article 11, paragraph 2 of Article 39, and Article 41 of the Constitution.

– The contested part “for approval” in the title III “Procedure for approval and execution of termination of pregnancy” was not in accordance with Article 41 paragraph 1 of the Constitution and the right of the individual to freely decide on the procreation of children because this right was not subject to approval but to realisation only.

According to the Court, the allegations noted are unfounded, and for a reason that it is a legally regulated procedure envisaging the fulfillment of certain conditions in order to terminate pregnancy. Hence, if in the procedure the fulfillment of the required conditions is established, termination of pregnancy will be approved and executed, and consequently the challenged part is in accordance with Article 41 paragraph 1 of the Constitution.

– The contested parts of Article 6 paragraph 1, the disputed part “requirement” of Article 6 paragraph 2, Article 6 paragraph 4, and Article 19 paragraph 2 of the Law were contrary to Article 8 paragraph 1 line 4, Article 25, Article 41 paragraph 1, Article 51, Article 61 paragraph 1 and Article 61 paragraph 1 line 2 of the Constitution.

From the analysis of Article 6 paragraph 1 of the Law it stems that for the termination of pregnancy up to the tenth week the pregnant woman addressed the doctor who should perform the termination of pregnancy in writing in a form and content as determined by the Minister of Health. With the application of paragraph 1 of the same Article of the Law the pregnant woman also encloses the findings from completed ultrasonographic examination, as well as medical and other required documentation as stated in Article 9 paragraph 3 of this Law.

Based on the analysis made in this way, the Court finds that the determination of the legislator for the submission of a written application, accompanied by the necessary medical documentation, does not violate the dignity of the woman and does not lead to administrative aggrevation and delay of the procedure for termination of pregnancy. On the contrary, the application filed in writing is only an expression of the clearly expressed will of the woman to terminate the pregnancy, and the application itself has the character of submission for initiation of the procedure.

According to the Court, there is an unfounded claim in the application that the challenged provisions brought into connection the filing of the written application with the expiration of a period of ten weeks after the conception, which was not a period to neglect and led to the violation of the dignity of the woman. Namely, what was in question was the wrong reading of the provisions, because it does not refer to submitting a written application in case when ten weeks of pregnancy have expired, but pregnancy up to ten weeks, pursuant to Article 6 paragraph 1 of the Law, which is a completely different time period.

From the analysis of Article 6 paragraph 4 of the Law it arises that the content and method of consultation under paragraph 3 of this Article shall be prescribed by the Minister of Health with a separate act, and in accordance with Article 19 paragraph 2 of the Law the Minister of Health shall prescribe a medical protocol for work which will contain the necessary medical examinations including ultrasonographic examination before and after the termination of pregnancy, and the procedures for carrying out the termination of pregnancy.

According to the Court, such powers given to the Minister of Health in the disputed Article 6 paragraph 4 and Article 19 paragraph 2 of the Law do not constitute interference of the executive power into the legislative power, that is, do not violate Article 8 paragraph 1 line 4 of the Constitution.

This is for a reason that under Article 56 paragraph 1 of the Law on the Organisation and Operation of Bodies of State Administration (“Official Gazette of the Republic of Macedonia” nos.44/2002, 82/2008, 167/2010 and 51/2011) certain provisions of laws and other regulations are defined and worked out by a rulebook for their enforcement, and under Article 61 paragraph 1 of the same Law the acts that are adopted by the the Minister may not definee rights and obligations for the citizens and other legal entities, nor prescribe jurisdiction of other bodies.

In a situation when the Law on Termination of Pregnancy, and in particular Article 6 paragraph 3, clearly regulates in which direction the counseling of the pregnant woman is implemented by the doctor (counseling of the pregnant woman for the possible advantages of continuing the pregnancy and the risks of implementation or non-implementation of the intervention for termination of pregnancy upon the health and life of the woman, the methods to perform termination of pregnancy, learning the opportunities and methods to prevent pregnancy), it arises that there is a sufficient legal framework in the Law on the baiss of which the Minister of Health, in the function of working out the legal provisions, adopts a bylaw on the content and method of counseling.

Article 19 paragraph 2 of the Law is contained in Chapter IV entitled “Requirements for medical institutions that perform termination of pregnancy”. Thereby, the authorisation of the Minister of Health to prescribe a medical protocol for work, according to the Court, is an authorisation for prescription of a professional medical character, in order to unify the procedure, with an organisational character only, and not in order to determine rights and obligations of the citizens and legal entities.

The question, however, whether with the bylaws the Minister of Health goes beyond the given legal framework is a question that may be raised only when the subject of an assessment of the constitutionality and legality would be specific bylaws.

As a matter of fact the part: “the content and” in Article 6 paragraph 4 and the part: “and the procedure for performing the termination of pregnancy” in Article 19 paragraph 2 of the Law on Termination of Pregnancy on the occasion of similar allegations were subject to assessment of their constitutionality and the Court with its Resolution U.br.87/2013 of 18 December 2013 did not initiate proceedings for the appraisal of constitutionality.According to the Court, in Article 6 paragraph 3 of the Law the legislator clearly and unambiguously has defined the theme and content of counseling of the pregnant woman, that is, has given an objective legal framework as to in which direction the counseling of the pregnant women should take place, and the further authorisation in paragraph 4 the same Article for the Minister of Health to prescribe the content and the advice referred to in paragraph 3 of this Article, may and should be understood only as further working out of the provision referred to in paragraph 3 of the same Article, in the function of operationalisation of the Law, and not as right to originally define other contents of counseling, beyond those stipulated by paragraph 3 of the same Article.

Hence, the Court held that the authority of the Minister of Health to prescribe with a bylaw the content of the counseling of the pregnant women referred to in Article 6 paragraph 3 of the Law, is in the function of working out paragraph 3 of the same Article with which the legislator has defined the framework of the content of the counseling for the pregnant woman, and consequently has not raised the question as to the accordance of Article 6 paragraph 4 in the part: “the content and” of the Law on Termination of Pregnancy with Article 8 paragraph 1 lines 3 and 4, Article 51 and Article 61 paragraph 1 of the Constitution.

From the content of the Law on Health Care, but also from the content of the Law on Termination of Pregnancy the Court found that the expert guidelines are in the function of the need to strengthen the accountability of health workers and the introduction of professional standards in health care in the context of medicine based on evidence. In this direction is the medical protocol for work prescribed by the Minister of Health, which contains the necessary medical examinations including ultrasonographic examination before and after the termination of pregnancy, as well as the procedures for performing the termination of pregnancy, which regulates the specified medical intervention from an organisational aspect. Thus, according to the Court, there is no violation of the principle of the rule of law, nor can it be accepted that the executive power interfered with the competences of the legislative power, as alleged in the application.

According to the Court, in the present application there is also an unfounded claim that for other medical interventions it was not stipulated to file an application as it was the case for the termination of pregnancy. Namely, from the content of Article 14 paragraphs 2 and 3 of the Law on Protection of Patients’ Rights (“Official Gazette of the Republic of Macedonia” nos.82/2008, 12/2009 and 53/2011) it arises that under the said provision the patients expresses his/her acceptance or rejection of certain medical intervention by signing a statement, and the form and content of the statement of consent and the statement of rejection of certain medical intervention is prescribed by the Minister of Health.

Based on the above, and taking into account the noted constitutional case-law, the Court found that the disputed parts of Article 6 paragraph 1, the disputed part of Article 6 paragraph 2, Article 6 paragraph 4 and Article 19 paragraph 2 of the Law are in accordance with Article 8 paragraph 1 line 4, Article 25, Article 41, Article 51 and Article 61 paragraph 1 of the Constitution.

In relation to the allegations in the application of the incompatibility of these provisions and parts of provisions with Article 61 paragraph 1 line 2 of the Constitution, the Court found that there are no conditions to engage itself in constitutional court analysis for a reason that in Article 61 paragraph 1 there are no lines, and the challenged provisions may not be subject of assessment in terms of a non-existing constitutional provision.

– According to the applicants, the disputed part of Article 6 paragraph 2 and Article 9 paragraph 3 of the Law were not in accordance with Article 8 paragraph 1 line 3, Article 9, Article 11, Article 25 and Article 41 paragraph 1 of the Constitution.

From the analysis of Article 6 paragraph 2 of the Law it results that it stipulates that the pregnant woman enclose findings of ultrasonographic examination, and other required documentation as stated in Article 9, paragraph 3 of this Law with the application for termination of pregnancy.

Article 9 paragraph 3 of the Law envisages that medical and other documentation is enclosed with the application for termination of pregnancy, as follows:
– Certificate from a doctor specialising in gynecology and obstetrics that the woman is pregnant, that she has been informed of the possible advantages of continuing the pregnancy and the risks of implementing or non-implementing the intervention for termination of the pregnancy upon the health and life of the woman, methods to perform the termination of pregnancy, as well as that she has been familiarised with the possibilities and methods of preventing pregnancy; and
– Finding and an opinion from a specialist in the appropriate branch of medicine whose field includes the disease of the pregnant woman, that is, the illness of a parent in the cases referred to in Article 4 paragraph 1 lines 1 and 2 of this Law, a certificate from the competent public prosecutor that criminal proceedings was initiated in the case referred to in Article 4 paragraph 1 line 3 of this Law, that is, a certificate from the center for social work or the health facility if the pregnancy termination is required for the reasons referred to in Article 4 paragraph 1 line 4 of this Law.

From the analysis of the two provisions it arises that their subject of regulation is not the counseling of the pregnant women about the advantages and risks of terminating the pregnancy, but the subject of regulation is what is the necessary documentation that is enclosed with the application for termination of pregnancy. In other words, the provisions do not contain an obligation for the doctor to advise the pregnant woman, but an obligation for the woman to submit the necessary documentation.

Based on the above,  the Court finds that the disputed Article 6 paragraph 2 and Article 9 paragraph 3 of the Law, considered in the light of the allegations of the application are in accordance with Article 8 paragraph 1 line 3, Article 9, Article 11, Article 25 and Article 41 paragraph 1 of the Constitution.

– Mandatory counseling is regulated in Article 6 paragraph 3 of the Law. The part: “is obliged” in this provision is subject to challenge in the application.

According to the content of the said provision, before the termination of pregnancy the doctor is obliged to advise the pregnant woman for the possible advantages of continuing the pregnancy, as well as the risks of implementing or non-implementing the intervention for termination of the pregnancy upon the health and life of the woman, the methods for performing the termination of pregnancy, and to familiarise her with the opportunities and methods to prevent pregnancy.

The Court considers that the envisaged legal obligation for the doctor to advise the pregnant woman does not create inequality with other patients, because even the pregnant woman, at her own risk, under Article 12 of the Law on the Protection of Patients’ Rights, may refuse to accept the information about the nature of her own health, in which case the doctor determines that the patient refuses counseling, and thereby he will not be able to do the counseling. Thereby the inability to conduct counseling, because of the personal choice of the woman, according to the Court, is not subject to misdemeanour liability under Article 33 of the Law.

Also, the duty to implement counseling should be viewed from the aspect of the need to reinforce the responsibility of healthcare professionals in the introduction of professional standards in health care in the context of evidence-based medicine.
Whether in this particular case during counseling there would coercion and bias is not an issue that can be dealt with by the Constitutional Court since it is a matter of concrete application of the Law in an individual case.

Hence, the Court found that the disputed part of Article 6 paragraph 2, the disputed part of Article 6 paragraph 3 and Article 9 paragraph 3 are in accordance with Article 8 paragraph 1 line 3, Article 9, Article 11, Article 25 and Article 41 paragraph 1 of the Constitution.

– According to the allegations in the application, Article 6 paragraph 7 of the Law was not in accordance with Article 8 paragraph 1 line 3 and Article 9 of the Constitution, since it discriminated against women by age and disability.From the analysis of the contested Article 6 paragraph 7 of the Law it results that it envisages that the termination of pregnancy may not be made before the expiration of three days following the counseling referred to in paragraph 2 of this Article, unless an underage woman, a woman with suspended or limited legal capacity is in question, or if there is a valid medical indication for that, which the doctor must duly record in the medical documentation and records (paragraph 7). In other words, the period of three days after the counseling in order to perform the termination of pregnancy is not applied to minor women, women with suspended or limited legal capacity or if there is a valid medical indication for that.

Based on this analysis the Court found that there may not be raised a question for an unequal treatment of minor women, women with suspended or limited legal capacity, on the one hand, with adult and with full legal capacity women, on the other hand, who can reason and assess their situation, because the two categories are not in the same medical and legal situation. Namely, there is an unequal treatment when with the contested acts the same category of people is put in an unequal position, which is not the case here.

Hence, according to the Court the challenged Article 6 paragraph 7 of the Law is in accordance with Article 8 paragraph 1 line 3 and Article 9 of the Constitution.

– In terms of Article 6 paragraph 8 and Article 15 of the Law, it is stated that they were not in accordance with Article 8 paragraph 1 line 3 and Article 9 of the Constitution, as they envisaged mandatory records of interventions for termination of pregnancy, which was contrary to the domestic legislation and especially with the Law on Records in the Field of Health and Article 17 of the International Covenant on Civil and Political Rights. The provisions interfered in the privacy of the woman, that is, violated her privacy.

From the analysis of the contested provisions the Court found that they stipulate an obligation for the doctor after the intervention to keep records in the book of records, to enter the data in the medical record of the pregnant woman and the book of records, that is, the committees to keep minutes of the held sessions and a book records in a written and electronic form, all in accordance with the regulations for protection of the rights of patients.

In these created provisions it may not be perceived a violation of the privacy of citizens or their dignity, because the provisions do not stipulate public disclosure of the data, but recording of the data for medical and administrative purposes.

From the allegations in the application, with respect to these impugned provisions it is not clear what the violation of Article 9 of the Constitution is.

Based on the above, the Court found that Article 6 paragraph 8 and Article 15 of the Law are in accordance with Article 8 paragraph 1 line 3 and Article 25 of the Constitution.

– According to the applicants, Articles 7, 8, 9, 10, 11, 12, 13 and 14 of the Law were not in accordance with Article 8 paragraph 1 line 4, Article 50 and Article 51 of the Constitution, because they did not prescribe membership of a lawyer and expert in the field of human rights which was an indicator for an obstacle in the exercise of the right to free choice of the woman. Also, the committees, through the legislator, as part of the executive power, received special authority to decide on the constitutionally guaranteed freedom of women to freely decide on childbirth. This right should not be subject to any approval, and the determination of Article 14 of the Law on the finality of the decision meant that no court protection was envisaged which was contrary to Article 8 paragraph 1 line 3 and Article 50 of the Constitution.

These allegations are unfounded, as it is the right of the legislator to determine what profile of experts the committees that decide on termination of pregnancy should include, and the fact that the application advocated the participation of a lawyer and an expert is a request to the Constitutional Court to create a standard for which it has no constitutional jurisdiction.

The fact that the legislator leaves to the committees to carry out the procedures for termination of pregnancy in the manner prescribed by the legislator stems precisely from the separation of state powers into legislative and executive.

The determination of the legislator for the finality of the decision of the second instance committee does not mean that in the procedure for termination of pregnancy no court protection is allowed against the decision of the second instance committee for a simple reason that there is no provision in the Law that excludes court protection. After all, under Article 8 paragraph 2 of the Constitution in the Republic of Macedonia everything that is not prohibited by the Constitution and law is allowed.

Based on the above, the Court found that the disputed articles 7, 8, 9, 10, 11, 12, 13 and 14 of the Law are in accordance with Article 8 paragraph 1 line 4, Article 50 and Article 51 of the Constitution.

– Article 9 paragraph 1 of the Law is in particular challenged in the application in terms of its compliance with Article 8 paragraph 1 line 4, Article 50 and Article 51 of the Constitution, because the procedure for termination of pregnancy was the only medical procedure for which a written application should be filed and approval should be waited for, which spoke that women were discriminated against in view of men based on gender and were put in a more unfavourable position. Also, the envisaged submission of a written application automatically meant violation of the privacy of the woman, because in this way the entire health facility would be familiar with the choice of the woman. Therefore, the state had to ensure that men and women alike enjoy the rights provided for by the Constitution.

The contested Article 9 paragraph 1 of the Law stipulates that the pregnant woman apply for termination of pregnancy in writing to the first instance committee.

According to the Court, this envisaged way of address of the pregnant woman to the first instance committee does not violate the constitutional provisions invoked in the application, because the written application is just a way of initiating the procedure for termination of pregnancy. Whether the data on the pregnant woman will be kept as confidential or unreasonably and unlawfully disseminated is a matter of personal sense of responsibility for the performance of official duties, respect for the relevant laws and medical ethics and may not be based on assumptions. The impugned provision only determines the form to initiate the procedure and nothing more than that.

Although with regard to this provision the application does not request expressly an assessment in view of its compliance with Article 9 of the Constitution, it indirectly arises from the allegations in the application. According to the Court, Article 9 of the Constitution is not violated, and given the fact that pregnancy is a medical condition that is different from any other disease, that is, it is a condition in which a man or a person who has any disease cannot find himself there may not be raised a question for a violation of their equality.

Hence, the Court found that the disputed article 9 paragraph 1 of the Law is in accordance with Article 8 paragraph 1 line 4, Article 9, Article 50 and Article 51 of the Constitution.

– The application states that the disputed Chapter VII and Articles 36 and 37 of the Law were contrary to Article 8 paragraph 1 line 3 of the Constitution, because they were not different from the content of Article 129 of the Criminal Code (criminal offence of “Illegal termination of pregnancy”), which led to legal uncertainty and undermined the rule of law.

From the analysis of the contested Articles 36 and 37 of the Law it arises that in the provisions the following persons are envisaged as possible perpetrators: doctor (Article 36, who shall be punished with imprisonment from six months to three years), health institution (Article 37 paragraph 1, which will fined and will have permanent revocation of the work licence), and director of medical institution (Article 37 paragraph 2, who shall be punished with imprisonment from six months to three years). The offence is committed with the termination of the pregnancy contrary to the provisions in the Law or when the termination of pregnancy is carried out in a medical institution that does not meet the requirements of Article 19 of the Law or acts contrary to the said provision. That means that persons with special capacity (doctor or director of a health institution) or a legal person – health institution may appear as offencers.

The criminal offence “Illegal termination of pregnancy and forced sterilisation” of Article 129 paragraph 1 of the Criminal Code is committed by a person who contrary to the provisions for termination of pregnancy, with the consent of the pregnant woman performs, will begin to perform or will assist in performing termination of pregnancy, for which he may be punished with imprisonment of three months to three years.

Under paragraph 2 of Article 129 of the Criminal Code, the person committing the offence referred to in paragraph 1 shall be punished with imprisonment of one year to five years.

Paragraph 3 of the same Article stipulates that a person who performs or will start to perform termination of pregnancy of a pregnant woman without her consent shall be punished with imprisonment of one year to five years.

Under paragraph 4 of Article 129 of the Criminal Code, the one who without the consent or by misleading or exploiting the ignorance of a female against the law, by surgery or otherwise terminates her ability for reproduction shall be punished with imprisonment of three to ten years.

If the offense referred to in paragraphs 1, 2, 3 and 4 of this Article is committed against a minor female or serious physical impairment of health or death of a female woman occurred, the offender shall be punished for the crime referred to in paragraph 1 of this Article with imprisonment of six months to five years, and for the offence referred to in paragraphs 2, 3 and 4 with a prison term of at least five years (paragraph 5).

From the special analysis of Article 129 of the Criminal Code, it appears that the offender could be anyone, unlike the disputed Articles 36 and 37 of the Law on Termination of Pregnancy where offenders are those in the capacity of a doctor, director of a health institution or health institution. The acts of commission are not identical to the acts of the impugned provisions, and hence the envisaged penalties in the Criminal Code and the contested provisions differ.

Accordingly, the allegations in the application that the impugned Articles 36 and 37 of the Law did not differ from the content of Article 129 of the Criminal Code are unfounded, and hence the Court found that they are in accordance with Article 8 paragraph 1 line 3 of the Constitution. In the formation of the legal opinion the Court took into consideration that the legislator in this case complied fully with Article 14 paragraph 1 of the Constitution, under which no one may be punished for an act which prior to being committed was not defined by law or by another regulation as punishable offence and for which no punishment was stipulated.

– Pursuant to Article 110 paragraphs 1 and 2 of the Constitution, the Constitutional Court of the Republic of Macedonia decides on the conformity of laws with the Constitution and the conformity of other regulations and collective agreements with the Constitution and laws.

Under Article 28 line 1 of the Rules of the Constitutional Court of the Republic of Macedonia, the Constitutional Court will dismiss the application if it is not competent to decide on the request.

From the analysis of the remaining allegations in the application it derives that the applicants request that separate challenged provisions and parts of provisions from the Law on Termination of Pregnancy be appraised in terms of their compliance with other provisions of the same Law, with: the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of Persons with Disabilities with the Optional Protocol to the Convention, the Convention on the Rights of the Child, the European Convention on Human Rights and the International Covenant on Civil and Political Rights, and with the Law on Health Care, the Law on the Protection of Patients’ Rights and the Law on Records in the Field of Health.
These allegations, evaluated together, according to the Court, are a request for appraising the mutual agreement of legal provisions from two different laws, or to assess the legal provisions with an international act (irrespective of whether it is ratified or not), for which allegations, under Article 110 of the Constitution, the Constitutional Court is not competent to decide.

As to the said case-law of the European Court of Human Rights, the Court considers that it is important in the procedure for the protection of individual freedoms and rights, in which procedure the Constitutional Court in its decision-making may be guided by the presented views and legal considerations of the European Court of Human Rights. However, in the abstract procedure, which includes the assessment of the constitutionality and legality there is no legally binding norm for the application of the case-law of the European Court of Human Rights.

6. On the basis of what has been stated, the Court decided as in items 1 and 2 of this Resolution.

7. The Court passed this Resolution in the following composition: the President of the Court Mrs Elena Gosheva, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mr Nikola Ivanovski, Mr Jovan Josifovski, Mrs Vangelina Markudova, Mr Sali Murati, Dr Gzime Starova and Mr Vladimir Stojanoski. The Resolution regarding the disputed part of Article 1, the disputed part: “with the written consent of a parent” under Article 3 paragraph 2, Article 3 paragraph 5, the part: “paragraph 5 of Article 3” and the part: “and before the expiration of one year from the previous termination of pregnancy”, of Article 4 paragraph 1, the part: “for approval of the title III “Procedure for approval and execution of termination of pregnancy”, the part: “and other required documentation as stated in Article 9 paragraph 3 of this Law” in Article 6 paragraph 2, Article 6 paragraphs 4, 5, 7, 8, 7, 8, 9, 10 and 11 of the Law was adopted with a majority vote.U.br.137/2013

Separate opinion

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