U.no.40/2007

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

3. Upon the initiative submitted by Stamen Filipov from Skopje, the Constitutional Court of the Republic of Macedonia with its Resolution U.no.40/2007 of 30 May 2007 instigated proceedings for appraising the constitutionality of the part of the provision noted in item 1 of the present Decision, since there was a well-founded question raised as to its concordance with the Constitution of the Republic of Macedonia.

4. At its session the Court found that under Article 57 paragraph 2 of the Law on Health Insurance, a domestic or a foreign natural person who offers the most qualitative programme for the work of the Fund and who meets the following conditions: – university education from the field of management, economic sciences, finances, business administration, public health, medical sciences or legal sciences management; – at least six years of working experience from the field of finances or management or from the system and the organisation of health care and health insurance or from the system and organisation of health care and health insurance and – knowledge of the regulations from the field of health care and health insurance, shall be appointed as Director of the Health Insurance Fund.

5. Under Article 2 paragraph 1 of the Constitution, sovereignty in the Republic of Macedonia derives from the citizens and belongs to the citizens.

Under Article 4 paragraph 1 of the Constitution, citizens of the Republic of Macedonia have citizenship of the Republic of Macedonia.

Pursuant to Article 8 line 3 of the Constitution, the rule of law is defined as a fundamental value of the constitutional order of the Republic of Macedonia.

Pursuant to Article 23 of the Constitution, each citizen has the right to take part in the carrying out of public mandates.

Under Article 29 of the Constitution, foreigners in the Republic of Macedonia enjoy freedoms and rights guarantees by the Constitution, under conditions defined by law and international agreements.

In line with Article 39 paragraph 1 of the Constitution, every citizen is guaranteed the right to health care.

Under Article 51 of the Constitution, in the Republic of Macedonia laws shall 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.

From the analysis of the said constitutional provisions it derives that foreigners in the Republic of Macedonia have the freedoms and rights defined by the Constitution, except for those which under the Constitution belong only to the nationals of the Republic of Macedonia, with that that the conditions for their exercise are left to be defined by law and international agreements. On the other hand, at the same time that means that the legislator is not obliged to prescribe equal conditions for the exercise of certain freedoms and rights for the citizens – nationals of the Republic of Macedonia and for foreigners and in that way to place them on an equal footing with them.

Pursuant to the provisions of the Constitution, the exercise of public offices, given that it concerns the carrying out of tasks connected with the functions of the state, in all its three branches – legislative, executive and judicial, is reserved for the nationals of the Republic of Macedonia, so that foreigners may not be placed on an equal footing with the citizens-nationals of the Republic of Macedonia.

The Law on Health Insurance governs health insurance of citizens, the rights and obligations from health insurance, as well as the manner of implementation of health insurance.

Pursuant to Article 2 of this Law, health insurance is established as compulsory and voluntary.

Compulsory health insurance is established for all citizens of the Republic of Macedonia with a view to providing health services and pecuniary compensations on the basis of the principles of comprehensiveness, solidarity, equality, and effective use of the funds under conditions defined by this Law and the regulations adopted on the basis of the present Law. Voluntary health insurance is established with a view to providing health services that are not included in the compulsory health insurance.

Under Article 3 of the same Law, compulsory health insurance is conducted by the Health Insurance Fund of Macedonia. Voluntary health insurance may be conducted by insurance companies founded based on the insurance regulations.

Pursuant to Article 8 of this Law, the compulsory health insurance of insurees ensures them a right to basic health services under conditions defined by this Law, in case of illness or injury out of work and in case of an injury at work and professional illness.

The funds for compulsory health insurance, pursuant to Article 37 of the same Law, are provided from contributions from: gross salaries and compensations to salaries of employees, pensions and compensations from pension and disability insurance, incomes of persons who have an activity of their own, funds for unemployed persons and funds of the other persons obliged for contributions, from additional contribution in case of injury at work and professional illness, from share of the insurees, from the budget of the Republic, from interests and dividend, from gifts, legacies, and from other incomes.

Pursuant to Article 53 of this Law, a Health Insurance Fund of Macedonia is set up for the realisation of the rights and obligations from the compulsory health insurance. The Fund carries out an activity of public interest and performs public mandates defined by this Law. The fund has the capacity of a legal entity. The Fund is independent in its work. The seat of the Fund is in Skopje. The Fund has a statute and a single giro account.

Article 55 of this Law stipulates that the Fund is managed by a Board of Directors. The Board of Directors is composed of seven members who are appointed and discharged by the Government of the Republic of Macedonia for a term of four years.

Article 57 of the Law defines the managing body of the Fund. Thus, as a novelty included in the Law on Changing and Supplementing the Law on Health Insurance (“Official Gazette of the Republic of Macedonia”, no.18/2007) it is defined that the managing body of the Fund – Director -, consists of two persons who are equally responsible for the work of the Fund and for the obligations that are taken upon in the legal circulation. A domestic or a foreign natural person who offers the most qualitative programme for the work of the Fund and who meets the conditions defined in this article, that is: completed university education from the field of management, economic sciences, finances, business administration, public health, medical sciences or legal sciences management; at least six years of working experience from the field of finances or management or from the system and organisation of health care and health insurance and knowledge of the regulations from the field of health care and health insurance, shall be appointed as Director of the Fund. The Director of the Fund is appointed by means of a public announcement, for a term of four years, with the possibility for another election. After the conducted announcement, the Director of the Fund, upon a proposal of the Minister of Health, is appointed by the Government of the Republic of Macedonia, which concludes a management contract with the persons appointed as Directors.

Pursuant to Article 58 of the same Law, the Director of the fund: – manages with the work of the Fund; represents the Fund; proposes general acts; sees to the implementation of the decisions of the Board of Directors, the regulations, and general acts of the Fund, and performs other tasks defined by the regulations, statute and general acts of the Fund.

Under Article 62 of this Law, the means for the work of the Fund are provided from the compulsory health insurance contribution and other sources of means of Article 37 of this Law.

On the basis of the principles of efficient, effective and economical use of the funds, pursuant to Article 63 of the same Law, the Fund covers the costs for: health services included in the basic package of health services that are offered by health institutions to the insurees; medicine, aiding medical materials that serve for the application of the medicine and medical material necessary for treatment, defined by a general act; braces, orthopaedic and other appliances, aiding and medical devices and materials, and dental technical means, defined by a general act; pecuniary remunerations; investment for the creation and improvement of the conditions for rendering health services to insurees; performance of the function of the Fund; part of the measures and activities for the implementation of preventive and other programmes for the treatment of certain illnesses, as well as for the handicapped persons, pursuant to the Law on Health Care and other needs for the implementation of the compulsory health insurance.

From the analysis of the said legal regulation it arises that the Law on Health Insurance sets up a Health Insurance Fund of Macedonia, which is competent to implement the compulsory health insurance of citizens. The Fund performs an activity of public interest and carries out public mandates defined by this Law. The Fund is mostly financed from the funds of the citizens collected on ground of contributions or from the Budget of the Republic, as a result of which it is subject to public liability for the management with these funds. In the function of protecting the public interest of citizens, the legislator stipulated that the members of the Board of Directors of the Fund and the Director of the Fund, as performers of a public office, are appointed and discharged by the Government of the Republic of Macedonia.

Hence, given that the Health Insurance Fund is a public institution found for the implementation of the compulsory health insurance, the Court finds it undoubted that the managing function – Director of the Health Insurance fund – is a public office which by its character and significance is among the groups of public functions the carrying out of which is entrusted to the citizens-nationals of the Republic of Macedonia, and not to foreign persons.

The impossibility for a foreign person to carry out this function does not mean suspension of the right to work for this category of persons, since that does not exclude the possibility for a foreign person to exercise the right to work, under conditions defined by law and international agreement, but not as the holder of a public office.

On the contrary, the stipulation of a possibility for a foreign person to perform the said public office, according to the Court, questions the sovereignty of the Republic of Macedonia which, pursuant to Article 2 paragraph 1 of the Constitution, derives from the citizens and belongs to the citizens.

Given what has been noted, the Court assessed that the challenged provision of Article 57 paragraph 2 in the part “or a foreign” of the Law on Health Insurance is not in accordance with Article 2 paragraph 1, Article 8 paragraph 1 line 3, and Article 51 of the Constitution of the Republic of Macedonia.

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

7. The Court passed the present decision in the following composition: the President of the Court Mr Mahmut Jusufi, and the judges: Dr Trendafil Ivanovski, Mrs Liljana Ingilizova-Ristova, Mrs Mirjana Lazarova Trajkovska, Mrs Vera Markova, Mr Branko Naumoski, and Dr Bajram Polozani.

U.no.40/2007
4 July 2007
S k o p j e

PRESIDENT
of the Constitutional Court of
the Republic of Macedonia
Mahmut Jusufi