Decision U.no.241/2007

U.no.241/2007

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 11 June 2008, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. The decision on division of the Public Health Institution University Clinical Centre – Skopje, no.19-3888/1 of 26 June 2007 (“Official Gazette of the Republic of Macedonia”, no.102/2007), made by the Government of the Republic of Macedonia IS ANNULLED.

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

3. Upon submitted initiatives by Petre Ilievski, a lawyer from Skopje, Stamen Filipov from Skopje, Prof.Dr. Zoran Karadzov and Prof. Gorgi Orovcanec from Skopje, with its Resolution U.no.241/2007 of 5 March 2008, the Constitutional Court of the Republic of Macedonia initiated a procedure for appraising the constitutionality of the Decision noted in item 1 of the present decision, on grounds of raising the question about its concordance with the Constitution.

4. At its session, the Court found that on the basis of Article 91 paragraph 2 of the Law on Health Care, and in connection with Article 34 paragraphs 1 and 2 of the Law on Institutions, the Government of the Republic of Macedonia took a Decision on dividing the Public Health Institution University Clinical Centre – Skopje no.19-3888/1 of 26 June 2007 (“Official Gazette of the Republic of Macedonia”, no.102/2007).

With Article 1 of this Decision the Public Health Institution University Clinical Centre – Skopje is divided into 30 public health institutions that are separately enumerated.

Articles 2 through 31 of this Decision govern specifically that each part of the single Public Health Institution University Clinical Centre – Skopje, as an organisational unit of institute or clinic for hospital activities, will further continue to work as a separate public health institution for each hospital activity, and that the educational activity and scholarly-research activity will continue to take place in each of them. Concomitantly, they define the persons that will perform the duty in the separate public health institutions.

Article 32 of this Decision sets down that an Organizational Unit – common services and the part Organizational Unit – common services of the surgical clinics which encompasses central sterilization and general technical matters, is organized and continues to work as a separate Public Institution for Common Issues, from the previously existing parts of the Public Health Institution University Clinical Centre – Skopje.

Under Article 33 of this Decision, the entry in the Central Registry of the Republic of Macedonia of the public health institutions of Article 1 and the public institution of Article 32 of this Decision shall be made within 30 days from the date this Decision entered into force. On the date of entry they shall take over the employees, the space, equipment, means for work and facilities in which the organizational units perform their activities.

Article 34 of this Decision defines that within 3 months from the date of entry into the Central Registry of the Republic of Macedonia the statute shall be adopted, the members of the management body shall be elected and the directors of the public health institutions shall be appointed.

Under Article 35 of this Decision, the means for work of the public health institutions of Article 1 and the public institution of Article 32 of this Decision shall be provided from the Health Insurance Fund of Macedonia on the basis of concluding a contract, as well as from their own resources.

Under Article 36, the acts of the Public Health Institution University Clinical Centre – Skopje shall continue to apply up to six months at the latest from the date this Decision entered into force.

Article 37 defines that public health institutions will conclude contracts regulating their mutual relations with the public institution of Article 32 of this Decision.

Under Article 38 of this Decision, on the date of entry in the Central Registry of the Republic of Macedonia the public institution of Article 32 of this Decision shall take on the claims and debts that had been incurred until the date of entry of the public health institutions in the Central Registry of the Republic of Macedonia.

Claims and debts of the Public Health Institution University Clinical Centre – Skopje that occurred following the date of entry of the public health institutions and the public institution shall be taken on by the public health institutions, and the public institution of Article 32.

Article 39 of the Decision sets down that on the date of entry of this Decision, the Decision on foundation of Clinical Centre – Skopje (“Official Gazette of the Republic of Macedonia”, no.20/1996) made by the Assembly of the Republic of Macedonia, shall cease to be valid.

Under Article 40, this Decision enters into force the following day from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

The Decision was published in the “Official Gazette of the Republic of Macedonia” no.102/2007 on 22 August 2007 and entered into force on 23 August 2007.

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

Under Article 51 of the Constitution, in the Republic of Macedonia the laws must be in accordance with the Constitution, and all other regulations in accordance with the Constitution and law. Everyone is obliged to respect the Constitution and the laws.

In line with Article 61 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, and in line with Article 88 of the Constitution, the executive power is vested in the Government of the Republic of Macedonia, which exercises its rights and duties on the basis of and within the frameworks of the Constitution and laws.

The Law on Health Care in the period since its adoption in 1991 until the changes and supplements of this Law in 2004, in Article 91 paragraph 1 envisaged that a health organisation may be founded by the Republic, legal and natural persons, while paragraph 2 stipulated that a public health organisation may be founded by the Assembly of the Republic of Macedonia.

The Law on Changing and Supplementing the Law on Health Care (“Official Gazette of the Republic of Macedonia”, no.10/2004), in Article 91 paragraph 2 the word “Assembly” is replaced with the word “Government”.

The noted legal change allows following the entry into force of the Law, 15 March 2004, the Government of the Republic of Macedonia to found a public health institution. While the changes in and supplements to the 2004 Law on Health Care apply to future relations, they do no regulate a new legal or transitional regime for the founder (the Assembly) of a previously founded public health organisation and there are no norms in the Law on status changes in the legal subjectivity of the public health institution the founder of which was the Assembly.

Concomitantly, Article 49 of this Law in the text of the Law replaces the wording “health organisation” with the wording “health institution”, and the clinical centre, as a type of health institution pursuant to Article 95 of the Law, is supplemented as “University Clinical Centre”.

The Law on Institutions (“Official Gazette of the Republic of Macedonia”, nos. 32/2005 and 120/2005) which as lex generalis has a subsidiary application and is applied unless otherwise regulated by another law, in its Article 14 paragraph 1 stipulates that a public institution is founded by the Assembly of the Republic of Macedonia with a law, that is, the Government of the Republic of Macedonia with a decision. However, this Law also does not contain regulation about a new legal regime of the public institutions founded prior to its adoption, and the Law is applied to future relations.

The Court found that the Law on Health Care does not contain provisions regulating a status change of the legal subjectivity of the public health institution that had already been founded by the Assembly of the Republic of Macedonia, but allowed following the entry into force of the noted changes in and supplements to the Law to found public health institutions by the Government of the Republic of Macedonia.

Given that, it is not disputable that the issue of new status changes of the legal subjectivity of the public health institution the founder of which was the Assembly is not regulated by law. Namely, the legislator allowed to have in the legal order the Assembly of the Republic of Macedonia and the Government of the Republic of Macedonia as the founders of public health institutions, whether prior to or following 2004 accordingly.

On the basis of Article 91 paragraph 2 of the Law on Health Care (“Official Gazette of the Republic of Macedonia”, nos.38/1991, 46/1993, and 55/1995), the Assembly of the Republic of Macedonia took a Decision on the foundation of the Clinical Centre – Skopje, no.08-1402/1 of 17 April 1996 (“Official Gazette of the Republic of Macedonia”, no.20/1996).

At the time this Decision was taken, the Assembly of the Republic of Macedonia was the only empowered authority with Article 91 paragraph 2 of the Law on Health Care to be the founder of a public health institution, and on the basis of this legal ground and the transitional regulation in the provisions of this Law, with the 1996 Decision the Assembly of the Republic of Macedonia became the founder of the concrete public health organisation – Clinical Centre with a seat in Skopje on the foundations of OOZT Clinics.

Upon the entry into force of the Law on Changing and Supplementing the Law on Health Care in 2004, it was envisaged that the founder of a public health institution be the Government of the Republic of Macedonia, and a legal ground was given in the future relations the Government of the Republic of Macedonia to be the founder. However, with the contested Decision on the division of the public health institution of University Clinical Centre – Skopje, the Government of the Republic of Macedonia appears in the capacity of a founder of new public health institutions and in the capacity of a legal subject repealing the existence of a public health institution of another founder (the Assembly).

The Court found that the legal ground on which is based the contested Decision are Article 91 paragraph of the Law on Health Care, which refers to the right of the Government to be the founder, and Article 34 paragraphs 1 and 2 of the Law on Institutions, which regulate the right of the founder to decide the institution to be joined to another institution, two or more institutions to me merged into one institution or the institution to be divided into two or more institutions, as well as the founder to be able to decide part of the institution (organisational unit) to be joined to another institution or to be organised as an autonomous institution.

Article 34 of the Law on Institutions about the future relations defines this right of the founder of the institution, and paragraph 3 stipulates that the manner of taking the decision on status changes may be governed only by a law and a statute of the institution.

In this case, on the basis of the 1996 Decision, the Assembly is the founder of the Clinical Centre – Skopje, and in Article 39 of the contested Decision the Government defined that on the date of entry into force of this decision, the Decision on founding the Clinical Centre – Skopje adopted by the Assembly of the Republic of Macedonia ceased to be valid.

This Decision is not based on a law on regulating status changes, that is, repealing the public health institution founded in the former period, and the Decision was not made by the founder of the institution, that is by the Assembly of the Republic of Macedonia.

Hence, the Court found that the Government adopted the contested Decision in contradiction with the constitutionally defined principles, whereby it repealed the existence of the formerly founded public health institution which had not been founded by it and it decided to be the founder of new public health institutions on its material base. Such actions were conducted by the Government by a sub-legal act and without a legal or transitional regime of regulating the relations that had occurred and existed since the previous period. Therefore, the Decision of the Government of the Republic of Macedonia regulates rights and relations that are legal and not sub-legal matter and is an act of decision-making that is not made by the founder of the institution, nor does it have a concrete empowerment by the Assembly as the founder of the institution.

The Court found that with the challenged decision the Government of the Republic of Macedonia, being the holder of the executive power, decided on rights and obligations that relate to the Assembly of the Republic of Macedonia and which are directly linked with the repeal of the public health institution founded by the Assembly of the Republic of Macedonia. It derogated, that is, removed from the legal order the Decision of the Assembly of the Republic of Macedonia, and thereby directly violated the constitutional principles of the rule of law and the division of powers by having interference of the executive into the legislative power, in contradiction with the provisions of Article 8 paragraph 1 lines 3 and 4 of the Constitution.

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

7. The Court passed the present Decision with a majority vote in the following composition: Dr Trendafil Ivanovski, President of the Court, and the judges: Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Branko Naumoski, Mr Igor Spirovski, and Dr Zoran Sulejmanov. (U.no.241/2007)

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