U.no.202/2007

On the basis of Article 110 of the Constitution of the Republic of Macedonia 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 30 January 2008, the Constitutional Court of the Republic of Macedonia passed the following

1. NO PROCEDURE IS INITIATED to appraise the constitutionality of Article 39 item 8 of the Law on Mental Health (“Official Gazette of the Republic of Macedonia”, no. 71/2006).

2. The association of citizens “Polio Plus” from Skopje submitted an initiative to the Constitutional Court to instigate a procedure for the appraisal of the constitutionality of Article 39 paragraph 2 of the Law noted in item 1 of the present Resolution.

According to the submitter of the initiative, the contested provision was anticonstitutional since it endangered basic freedoms and rights guaranteed by the Constitution of the Republic of Macedonia, in this case exclusively for the persons with a handicap. Furthermore, the initiative quotes Article 30 paragraph 1 of the Constitution, which guarantees the ownership of property for all citizens, and that also derived from Article 14 item 7 of the Law on Mental Health. Namely, this provision regulated which persons with mental illness had the right to own items for personal use, for clothing, ensuring personal hygiene, as well as for other personal and indispensable needs in line with the condition of their mental health.

However, according to the formulation of the challenged provision and according to the discretionary right of the State Sanitary and Health Inspectorate it had the right and duty to order to enable a person with mental illness to own items for personal use for clothing, ensuring personal hygiene as well as for personal and indispensable needs in line with the condition of his mental health. If it considered that it is not in agreement with the mental illness it would not issue such an order, which violates the constitutionally guaranteed right of the person to ownership of a property. As such and other restrictions did not exist for the other citizens in the Republic of Macedonia, the contested provision could be considered to be discriminatory given that the person with a mental illness was rendered a different treatment which breached-violated the equality in the enjoyment of the rights.

According to what has been noted, the contested provision violated Article 8 paragraph 1 lines 1, 3 and 6, Article 9, Article 30, Article 51 and Article 54 of the Constitution of the Republic of Macedonia.

3. At its session the Court found that under the contents of Article 39 item 8 of the Law on Mental Health, in the carrying out of the supervision of Article 38 paragraph 2 of this Law, the State Sanitary and Health Inspectorate has the right and duty to order to enable a person with mental illness to own items for personal use for clothing, ensuring personal hygiene, as well as for other personal and indispensable needs in line with the condition of his mental health.

4. Under Article 8 paragraph 1 lines 1, 3 and 6 of the Constitution, the basic freedoms and rights of the individual and citizen recognised in international law and set down in the Constitution – the rule of law and the legal protection of property – are among the fundamental values of the constitutional order of the Republic of Macedonia.

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

Under Article 30 of the Constitution, the right to ownership of property and the right to inheritance are guaranteed (paragraph 1). Ownership of property creates rights and duties and should serve the wellbeing of both the individual and the community (paragraph 2). No person may be deprived of or restricted in his/her property and of the rights deriving from it, except in cases concerning the public interest determined by law (paragraph 3).

Furthermore, analysing the contested provision from the aspect of the statements in the initiative, the Court made an insight also into the complete Law on Mental Health, as well as the complete Law on Sanitary and Health Inspection (“Official Gazette of the Republic of Macedonia”, no.71/2006) and found the following:

The existence of a mental illness with a concrete person may be diagnosed only by a doctor specialist – psychiatrist -, under the diagnostic criteria resting on evidence-based medicine.

During the stay in the health institution in addition to the general rights and obligations persons with mental illness are also enabled to exercise special rights, such as the rights of Article 14 item 7 of the Law on Mental Health, which provision is pointed out by the submitter of the initiative (right to own objects for personal use, for clothing, ensuring personal hygiene, as well as for other personal and indispensable needs in line with the condition of his/her mental health). That means it is a provision which enables the exercise of certain right.

A doctor specialist, in line with the condition of the mental health of the patient, determines whether the noted right (Article 14 item 7) shall be restricted and with a view to protecting the health of the patient or the health of the other persons in his/her surrounding.

Also, the contested Article 39 item 8 of the Law is set down as a provision enabling the exercise of the right granted in Article 14 item 7, but this time the State Sanitary and Health Inspectorate is the one that on the occasion of the inspection over the implementation of the Law has the right and duty to order to enable the exercise of the previously, without any medical ground, restricted right of a person with mental illness. Hence, the disputed Article 39 item 8 of the Law is set down as a provision enabling the exercise of the right which has been disabled previously, which means that it cannot be considered as a provision violating the ownership, but on the contrary enabling the ownership, use of the objects for personal use and hygiene.

What is common for both Article 14 item 7 and the contested Article 39 item 8 of the Law is that they take as a starting point the health condition of the patient, on which will depend whether the person with mental illness will use the given rights and whether he/she shall be enabled to use the restricted rights. This is with a view to protecting the health of the person himself/herself and of third persons from possible physical injuries that could arise from the nature of the illness.

The issue as to whether the State Sanitary and Health Inspectorate in a concrete situation shall not issue and order, although there are circumstances to enable the exercise of the given right, is not within the sphere of constitutional-court issues, but it is a factual issue or more of an issue of a concrete implementation of the Law.

As a result of the noted reasons, as well as owing to the fact that the restriction of certain rights for persons with mental illness is always in the function of protecting their health, there is no room for the appraisal of the contested provision from the aspect of equality in the enjoyment of the rights or in view of its accordance with Article 9 of the Constitution.

On the basis of what has been noted, the Court found that the contested Article 39 item 8 of the Law on Mental Health is in accordance with Article 9 and Article 30 of the Constitution.

As to the possible violation of Article 8 paragraph 1, lines 1, 3 and 6, Article 51 and Article 54 of the Constitution, the initiative does not contain concrete statements.

5. On the basis of the aforementioned, the Court decided as in item 1 of the present Resolution.

6. The Court passed the present resolution 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.202/2007
30 January 2008
S k o p j e
ml

PRESIDENT
of the Constitutional Court of
the Republic of Macedonia
Dr Trendafil Ivanovski