Decision U.no.77/2011

U.no.77/2011

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 21 September 201, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. Article 3 items 1 and 2, in the parts: “health” in the Law on Public Servants (“Official Gazette of the Republic of Macedonia”, nos.52/2010 and 36/2011) SHALL BE 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 the initiative of the Independent Union of the Clinical Centre and Other Health Institutions of the Republic of Macedonia – Skopje, the Constitutional Court of the Republic of Macedonia with its Resolution U.br.77/2011 of 6 July 2011 instigated proceedings for appraising the constitutionality of the Article of the Law noted in item 1 of this Decision, since there was a reasonable question raised as to its accordance with the Constitution.

4. At its session the Court found that under Article 3 of the Law on Public Servants certain expressions used in this Law have the following meaning:

1) Public servants are employees carrying out tasks of public interest in the fields of education, health, culture, science, labour and social works, social care and protection of children, institutions, funds, agencies, public enterprises founded by the Republic of Macedonia, the municipalities, the municipalities in the City of Skopje, that is the City of Skopje, and are not included in the Law on Civil Servants;
2) A public service are the institutions in the fields of education, health, culture, science, labour and social works, social and child care, funds, agencies, public enterprises founded by the Republic of Macedonia, the municipalities, the municipalities in the City of Skopje, that is, the City of Skopje, and are not included in the Law on Civil Servants;
3) Institutions, in the sense of this Law, are all state bodies carrying out tasks of public concern or entrusted public mandates, institutions, funds, agencies and public enterprises, founded by the Republic of Macedonia, the municipalities, the municipalities in the City of Skopje, that is, the City of Skopje, and are not included in the Law on Civil Servants;
4) A managing person of the institution is appointed or elected person who runs with the institution;
5) A working experience in the profession is the length of service or experience acquired in the corresponding profession after the public servant completed the corresponding education.

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 32 paragraph 5 of the Constitution, the exercise of the rights of the employees and their position are regulated by law and collective agreements.

Under Article 39 of the Constitution, every citizen shall be guaranteed the right to health care and citizens shall have the right and duty to protect and promote their own health and the health of others.

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

The Law on Public Servants regulates the scope of public service, the joint principles and grounds of employment, rights and duties, responsibility, evaluation, termination of employment, protection and decision-making on the rights and obligations, and the registry of public servants (Article 1).

Article 2 of the same Law envisages that public servants are the persons carrying out jobs and tasks of public interest in accordance with the Constitution, law and ratified agreements, professionally, politically neutral and impartially.

The challenged Article 3 of the Law on Public Servants defines the meaning of some terms that are used in this Law. Thus, item 1 in Article 3 of the Law explains that public servants are employees carrying out jobs of public interest in, inter alia, the health activity, that is, health.

Item 2 in Article 3 of the same Law clarifies that a public service is also an institution of the health activity.

The status of the public servant furthermore also arises from the provisions related to the procedure for employment implemented by the Agency for Public Servants (Article 17), and from the obligation of the public servant to carry out his work impartially (Article 24) and his obligation for professional training and advancement which is provided in the centres for training of the Ministry and other specialised institutions (Article 28).

Vis-à-vis this, the Law on Health Care regulates the rights of the citizens in health care, the relations and rights in health insurance, the procedure for the use of health care and the system of the organisation of health care (Article 1).

Under Article 8 of the same Law, a health activity may be performed only by health workers and health associates who meet the conditions defined by this Law.

Article 9 of this Law defines that health activity is of special social interest.

Chapter XII titled “Health workers and health associates” contains Article 144 which stipulates that health care may be provided only by health workers with corresponding professional education, completed internship of health workers with a high school, higher and university professional education of three years and work licence, and a corresponding specialisation or sub-specialisation for certain jobs and working tasks.

Article 155 paragraph 1 of the Law on Health Care envisages that with a view to protecting and promoting expertness and ethnical duties and rights, to improve the quality of health care, protect the interests of their profession, monitor the attitude of health workers to society and citizens, doctors of medicine, doctors of stomatology and graduated pharmacists unite in chambers of doctors, stomatologists, that is, pharmacists. Under paragraph 2 of the same Article in the Law, the chambers of doctors, stomatologists, that is, pharmacists have the capacity of a legal entity. Paragraph 3 of this Article in the Law stipulates that the chambers of doctors, stomatologists, that is, pharmacists may take away a work licence from doctors of medicine, doctors of stomatology, and graduated pharmacists if they establish that they have breached the medical ethics or have committed a more serious violation of the standards and quality of health services.

Under Article 155 paragraph 4 of the Law on Health Care an appeal may be lodged with the Ministry of Health against the decision of the chamber of doctors, stomatologists, that is, pharmacists.

Paragraph 5 of this Article of the Law envisages that the chambers referred to in paragraph 1 of this Article adopt a statute, define a code of professional ethnical duties and rights, form a court of honour and other accessory bodies, and adopt other acts about the manner of work of their bodies and the manner and procedure for issuing, that is, taking away a work licence.
Pursuant to Article 156 of the Law on Health Care, with a view to monitoring the achievements and advancements in certain fields of medicine, health workers in certain specialties may unite in professional associations, within the Macedonian Association of Doctors.

From the analysis of the constitutional norms cited and the legal regulation noted, the Court found that in this concrete case the claims in the initiative that the challenged articles in the Law on Public Servants are in contradiction with the Constitution of the Republic of Macedonia, and in particular with the fundamental value of the constitutional order of the Republic of Macedonia stipulated in Article 8 paragraph 1 line 3 of the Constitution – the rule of law and legal certainty of the citizens of the Republic of Macedonia – have merits.

Namely, from the analysis of the Law on Public Servants it clearly arises that public servants are persons carrying out jobs and working tasks of public interest in accordance with the Constitution, law and ratified agreements, professionally, politically neutral and impartially.

Taking as a starting point the said “definition” for the notion public servant a question arises if health workers may have the status of a public servant. This, first of all, is one takes into consideration the fact, expressly defined in the Law on Health Care, that health workers and health associates perform a health activity and which under the provisions of the Law on Health Care is of special social interest.

Hence, the Court found that health workers as performers of the health activity being an activity of special social interest may not have the status of a public servant, for a reason that health workers do not perform public mandates in the name of the state, but they have one and single aim – to protect the health of the citizens of the Republic of Macedonia and carry out health services according to the rules and standards of the profession. Namely, according to the Court the basic role of the health activity is to provide health care to the citizens of the Republic of Macedonia and not to act on behalf of the state. Hence the conclusion that health in its nature essentially does not belong in the public mandates implied in the Law, that is, that there is an essential differentiation of public servants’ powers, since health workers do not perform such an office in the narrower sense of the word. For these reasons, the identification of health workers with public servants and the consequences arising from that in terms of their status in the sense of the Law is to the detriment of both the citizens of the Republic of Macedonia who need provision of health care and health workers whose basic task and aim is to provide health services.

The conditions that the health worker should meet in order to provide health care are defined in the Law on Health Care, under which he/she should have a corresponding professional education, completed years of internship of health workers with secondary, higher and university professional educations of three years and a work licence, as well as a corresponding specialisation or sub-specialisation.
From what has been noted it clearly arises what the basic task and role of health workers in a society is, owing to which the Court found that the nature and character of the work does not allow for health workers to have the status of public servants as defined in the Law, who would perform jobs of public interest, inter alia “politically neutral and impartially”, as stipulated in Article 2 of the Law on Public Servants, which in the opinion of the Court is irrelevant in the context of providing health care.

In order to perform their activity health workers are required to possess a licence, which may be taken away by the corresponding chamber if it is established that they have violated the medical ethics or have committed a more serious violation of the standards and quality of health services.

The procedure for taking away a licence and the right to an appeal with the Ministry of Health are regulated in the Law on Health Care, which means that the evaluation of the work of doctors is reduced to the “guild”, that is persons, that is, institutions competent to evaluate their work.

On the other hand, the Law on Health Care, inter alia, envisages that the chambers referred to in paragraph 1 of Article 155 of the Law define a code of professional ethnical duties and rights, which requires from the doctors to act and work in accordance with the same.

Hence, according to the Court the Code of Ethnics stipulated in Article 24 paragraph 3 of the Law on Public Servants, which is adopted by the Ministry of Computer Society, is an additional argument in favour that health as an activity, and thereby health workers, may not be part of the Law on Public Servants. Namely, the obligation of doctors is to act and work in the sense of the already defined Code of Professional Ethnical Duties and Rights, otherwise certain sanctions are envisaged in the sense of taking away a licence, etc.

For the said reasons, the Court found that Article 3 items 1 and 2 in the part “health” of the Law is not in accordance with the fundamental value of the constitutional order of the Republic of Macedonia – the rule of law and the legal certainty of the citizens of the Republic of Macedonia as part of this principle, that is, part which is incorporated in this fundamental value of the constitutional order of the Republic of Macedonia. Namely, the rule of law implies a consistent application of the legal regulations, which should be general, specifically defined and unambiguously formulated rules.

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

7. The Court took the present decision with a majority vote in the following composition: Mr Branko Naumoski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Igor Spirovski, Dr Gzime Starova, Mr Vladimir Stojanoski, and Dr Zoran Sulejmanov.(U.br.77/2011)

 

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