Case nº U-I/4633/2010 of March 06, 2012. Proceedings for reviewing conformity of a law with the Constitution

Resolution Date:March 06, 2012
Issuing Organization:Constitutional Court
SUMMARY

The Health Protection Act

 
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The Constitutional Court of the Republic of Croatia, composed of Aldo Radolović, Deputy President of the Court, and Judges Mato Arlović, Marko Babić, Snježana Bagić, Slavica Banić, Mario Jelušić, Antun Palarić and Duška Šarin, deciding on the proposal to institute proceedings to review the conformity of a law with the Constitution of the Republic of Croatia, at its session held on 6 March 2012, rendered the followingDECISIONI. Article 37 paragraph 2 of the Health Protection Act (Narodne novine Nos. 150/08, 71/10, 139/10, 22/11, 84/11 and 154/11) is hereby repealed.II. Article 37 paragraph 2 of the Health Protection Act (Narodne novine Nos. 150/08, 71/10, 139/10, 22/11, 84/11 and 154/11) shall lose its legal force on 15 July 2012.III. This decision shall be published in Narodne novine.Statement of reasonsI. PROCEEDINGS BEFORE THE CONSTITUTIONAL COURT1.- The City of Zagreb City Council, represented by its President Boris Šprem, submitted to the Constitutional Court an application titled "Request for the initiation of proceedings to review the conformity with the Constitution of the Republic of Croatia of Article 37 paragraph 2 of the Health Protection Act" pursuant to Article 36 paragraph 1 of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Narodne novine, Nos. 99/99, 29/02 and 49/02 – consolidated text; hereinafter: the Constitutional Act).The applicant disputes the constitutionality of Article 37 paragraph 2 of the Health Protection Act (Narodne novine Nos. 150/08, 71/10, 139/10, 22/11, 84/11 and 154/11), which reads:"Article 37(...)The public healthcare network shall be adopted by the minister after securing the opinions of the Bureau, the Croatian Public Health Bureau and the competent chambers.(...)."2.- After examining the application, the Constitutional Court found that the application is in fact a proposal submitted under Article 38 paragraph 1 of the Constitution and it thus in Ruling No. U-I-4633/2010 (Narodne novine, No. 123/10) initiated proceedings for the review of the constitutionality of Article 37 paragraph 2 of the Health Protection Act.II. THE PROPONENT'S ALLEGATIONS3.- The proponent deems that Article 37 paragraph 2 of the Health Protection Act contravenes Article 129a (135) of the Constitution, which stipulates that units of local self-government shall, among other things, carry out affairs related to the planning and development of the network of healthcare institutions. It further deems that Article 9 paragraph 1 of the Health Protection Act narrows the scope of activities that the Constitution guarantees to the units of self-government in the field of health care, thereby depriving the unit of local self-government of any influence on planning and developing healthcare institutions on its territory.Article 37 of the Health Protection Act provides the minister of health with the exclusive right to determine, also for the territory of the unit of local self-government, the number of necessary healthcare institutions and private healthcare practitioners with which the Bureau signs a contract on providing health protection. In determining the public healthcare network the Act does not require any prior opinion of the unit of local self-government. Under the former legislation, the unit of self-government enjoyed the right to partially participate in creating the public healthcare network, while now this right has been completely extinguished.In summary, the proponent deems that the disputed Article of the Health Protection Act has unconstitutionally limited the right to perform activities at the local level and that the City of Zagreb, as a unit of local (regional) self-government, is prevented from conducting its constitutional competencies.The proponent further notes that the competent minister, under the disputed legal provision, adopted the Public Healthcare Network (Narodne novine, Nos. 98/09 and 14/10 - corrigendum) and the Amendments to the Public Healthcare Network (Narodne novine, Nos. 81/10), "....which excluded hospitals founded by the City of Zagreb without any proposal, approval or suggestion from the units of local (regional) self-government."At first this network in the City of Zagreb had included 16 hospital healthcare institutions while from 8 July 2010 this number decreased to seven. The proponent deems that there is no legal ground for decreasing the number of hospital healthcare institutions founded by the City of Zagreb.The proponent proposes that the Constitutional Court repeals the disputed Article 37 paragraph 2 of the Health Protection Act.III. THE CONSTITUTIONAL COURT PROCEEDINGS4.- Pursuant to Article 42 paragraph 1 of the Constitutional Act the proponent's proposal for review of the constitutionality of Article 37 paragraph 2 of the Health Protection Act was sent to the Ministry of Health and Social Welfare of the Republic of Croatia for a response, which on 30 December 2010 delivered its statement.The statement, among other things, states as follows:"(...) The Local and Regional Self-government Act (Article 20) stipulates that within its self-government jurisdiction the county shall carry out affairs related to healthcare, while a separate law regulating certain activities (including also healthcare) shall define the affairs for which the county is responsible and also affairs that may be carried out by the county.The Health Protection Act is the separate law within the meaning of Article 135 paragraph 3 of the Constitution of the Republic of Croatia and Article 20 paragraph 2 of the Local and Regional Self-government Act, because it is a lex specialis regulating the content and manner of carrying out healthcare activities.The Health Protection Act explicitly regulates the rights, obligations and duties of the units of local (regional) self-government in the field of healthcare protection.Thus, Article 9 paragraph 1 of this Act stipulates that a unit of local (regional) self-government shall realise its rights, obligations, duties and aims in the healthcare field by complementing the public healthcare network on its territory, and under the provision of sub-paragraph 5 of the same paragraph of Article 9 it shall adopt the healthcare protection plan for the territory of the local (regional) self-government unit in accordance with the Healthcare Protection Plan of the Republic of Croatia.According to the above provisions of Article 9 of the Health Protection Act it is clear that the...

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