206/1996 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the Czech Republic



The Constitutional Court of the Czech Republic decided to March 10. July 1996 plenary about

the proposal of a Group Of 43 members of Parliament of the Czech

the Republic of cancellation:



and section 11 (1)). 4 of Act No. 20/1966 Coll., on the health care of the people, in the text of the

the Czech National Council Act No. 548/1991 Coll.,



(b)) § 1, § 2, paragraph 1. 2 and 3 and section 13 (3). 3 and 5 of the Act of the Czech National Council No.

550/1991 Coll., on the universal health insurance, as amended by law No.

161/1993 Coll. and no 59/1995 Coll.,



(c) Health regulations issued by regulation) of the Government of the Czech Republic.

216/1992 Coll., as amended by regulation of the Government of the Czech Republic No. 50/1993 Coll. and

Government Decree No. 149/1994 Coll.



(d)) of the Decree of Ministry of health of the Czech Republic No. 467/1992 Coll.,

the health care provided for remuneration, as amended by Decree No. 155/1993

Coll., and



(e)) of the Czech Republic Ministry of health Decree No. 426/1992 Coll.,

reimbursement of medicinal products and medical devices, as amended by Decree No.

150/1994 Coll.



as follows:



and section 11 (1)). 4 of Act No. 20/1966 Coll., on the health care of the people, in the text of the

amended,



(b)) § 1, § 2, paragraph 1. 2 and 3 and section 13 (3). 3 and 5 of the Act of the Czech National Council No.

550/1991 Coll., on the universal health insurance, as amended

regulations,



(c) Health regulations issued by regulation) of the Government of the Czech Republic No. 216/1992

Coll., as amended,



(d)) of the Czech Republic Ministry of health Decree No. 467/1992 Coll.,

the health care provided for remuneration, as amended, and



(e)) of the Czech Republic Ministry of health Decree No. 426/1992 Coll.,

reimbursement of medicinal products and medical devices, as amended

regulations,



shall be deleted.



The enforcement of the award shall be postponed to a date 1. 4.1997.



Justification:



The proposal received at the Constitutional Court of the Czech Republic on 31 December 2004. 10.1995

the plaintiffs seek the repeal of the provisions of the said laws, which

saved the Government of the Czech Republic and the Ministry of health of the Czech

of the Republic to issue laws and regulations for the implementation of the CZECH NATIONAL COUNCIL Act No. 550/1991 Coll.,

on the universal health insurance, as amended. Further

propose the abolition of the draft marked secondary legislation,

the originator is the Government of the Czech Republic and the Ministry of health

Of the Czech Republic. The appellants are of the opinion that the legal

the provisions of the municipal bye-laws and are unconstitutional, and unconstitutionality

in their conflict with the article. 2 (2). 2, article. 4 (4). 1 and 2, article. 31 and

41 of the Charter of fundamental rights and freedoms (the "Charter") and of article. 2 (2).

4 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"). In the proposal, it was that

the limits of the constitutional right to free health care on the basis of public

insurance, as citizens of the Czech Republic provided in the article. 31 of the Charter,

can be determined exclusively by law and not other podzákonnými laws

provisions. Unable to do so or by regulation of the Government, even if the Government of the Czech

of the Republic according to article. 78 of the Constitution shall be entitled to issue regulations for the implementation of

the law and its limits, and even without explicit legal authorization. This

the normative power of the Government, as stated in the proposal, however, may not be

applied in the field of legal relations, and modify things, which, according to

a special constitutional law, which is the Charter (article 3 of the

The Constitution) may be modified only by law.



The appellants also point out that article. 31 of the Charter guarantees to all

citizens the basic right to free health care. Therefore, the conditions for

his application and the limits within which it can claim a citizen, must be

laid down in the law, especially when the right of the citizen to free

the provision of health care has changed in its obligation to provide

financial reimbursement for health care directly or indirectly to the stage

podzákonnými legislation.



The obligation may, however, be imposed only on the basis of the law and in its

the limits and, while maintaining the fundamental rights and freedoms (article 4 (1)

Of the Charter), which was also met.



The appellants further argue that under article. 31 of the Charter of the organization Foundation

This constitutional law rests on the public insurance. Public insurance

It was regulated by law the CZECH NATIONAL COUNCIL No. 550/1991 Coll., as amended by the laws of the CZECH NATIONAL COUNCIL No.

592/1992, no. 10/1993, no. 15/1993 Coll., the law no 161/1993 Coll.

No 324/1993 Coll., no 241/1994 Coll., no 59/1995 Coll. and Act No. 149/1996

Coll. of 25 June. 4. in 1996, which took effect on 1 January 2005. 7.1996, fixing the

amends the contested provisions of section 13 (3). 3 so that the deleted seconde

sentence of this provision. The original provisions of § 1 of the law

the ability for universal health insurance, so that on its basis

be granted the necessary health care free of charge, and to the extent

provided for by law and Health Regulations. The legal amendment No. 161/1993 Coll.

and the new law No. 59/1995 Coll. was the idea of the fundamental right to free

health care was abandoned, and was introduced to care fully or partially paid by the

health insurance. The plaintiffs accuse law of General

health insurance, that alone does not define the precise normative characters

the contents and scope of health care fully or partially paid, but that this

leaving edit resolution regulatory Regulation (regulation

the Government). If section 2 (2). the CZECH NATIONAL COUNCIL Act No. 550/1991 Coll., as amended by the

supplementary regulations, only generally distinguishes this care with regard to the



and the nature of the disability, State of health) and



(b)) the volume of financial resources to cover the care,

the second condition is inconsistent with the Charter, which does not make the provision of

health care the results of economic activities of health insurance companies.

Both of the above conditions (terms) are vague and

do not have a normative character. As regards the Health rules, which

has not been issued according to the mandate in section 2 (2). 2 of the Act on general health

insurance, but on the basis of constitutional delegations under article. 78 of the Constitution, its

the original text was based on the mandate to establish the range of free needed

health care and the conditions for its provision. After the change of the concept of

the provision of health care, the Government, by Regulation No 154/1994 Coll.

the obligation of health care assurance shifted from the State to the appropriate

a health insurance company, which according to the volume of financial resources and by

the scoring performance of health either fully or partially paid by the

provided health care.



Because of health regulations, and the Decree on the health care provided for remuneration

and reimbursement of medicinal products and medical devices make up a comprehensive

composition, not enough of them, according to the plaintiffs ' discard only the individual

provisions, and therefore proposed the repeal of these laws, and the whole

It's day 1. 10.1996.



Proponents also point to the Czech Republic to respect the

the right of everyone to achieve the maximum attainable level of physical and

mental health, as it follows from the provisions of the article. 12 paragraph. 1

The International Covenant on economic, social and cultural rights,

declared under no. 120/1976 Coll.



The Chamber of deputies of the Parliament of the Czech Republic by letter of its President

PhDr. Milan Uhdeho of 30 June. November 1995 sent to the Constitutional Court

representation, in which the first focused on the evaluation of the article. 31 of the Charter.

States that basic human rights and freedoms the Charter in article calculates. 5 to

16. also in the second partition, the head of the other Instrument that bears the name of the

"Human rights and fundamental freedoms" (article 23). Among them is not

included the right to protection of health, and therefore this right falls under the

Article mode. 4 (4). 1 of the Charter. According to the wording of this article may be

obligations imposed only on the basis of the law and its limits; from this, it is

concludes that the legislation may be established for the implementation of the law,

If these regulations were issued in accordance with the applicable law, with its

mandate and in its limits. The same article confirms. paragraph 41. 1 of the Charter.

With regard to the article. 12 of the International Covenant on economic, social and

cultural rights, or it cannot be inferred that the fulfilment of these

It should be realised only by directly editing in the Act.



Expressing further States that neither of the article. 31 of the instrument or from the cited

the provisions of the International Covenant cannot be inferred generally valid entitled citizens

on free health care, but only for free health care for

conditions laid down by the law. the implementing regulation issued by its

implementation and in its limits. Under these conditions may be taken into account and

the volume of financial resources to cover health care.



Act No. 20/1966 Coll., as amended, section 11 (2). 4 contains the authorization

for a more detailed definition of health care for the full or partial payment. In

the CZECH NATIONAL COUNCIL Act No. 550/1991 Coll., as amended, provides that the Health

the order is binding for all health insurance companies (therefore not "only"

for all the health insurance companies, as is stated in the draft), so you can

inferred that committed to other legal or natural person.



The Ministry of health of the Czech Republic by letter of the Minister of PhDr. Jana

Stráského of 9 June. 1.1996 in the attached expression considered meritum

design, whether they are underpinned by legislation listed in the proposal, in breach of article.

31 of the Charter. Based on the finding that the right to free health

care is a basic human right. This conclusion derives from the

the fact that the Charter of fundamental rights among only those rights that

they are listed in the second section, the first head of the Charter. In this context, the

Therefore, you cannot rely on article. 4 (4). 2 of the Charter. If the plaintiffs in

its design invoked by the article. paragraph 41. 1 of the Charter, then completely ignore,

that the word "limits", in which the citizens can claim constitutional rights

According to the article. 31 of the Charter, does not apply to the law itself, but to

permission to this claim.



In the evaluation of the CZECH NATIONAL COUNCIL Act No. 550/1991 Coll., as amended, in

comments stated that this law defines the range of health care paid for by

from general health insurance, in its section 2, paragraph 1. 1, 2, and 4,

so, that is by the law in a positive and a negative sense defined

the content of the right to free health care.



The cited law also provides authority for the Government to make its regulation

laid down a range of health care fully and partly paid from the General


health insurance, and provides guidelines for the Government to distinguish

health care, according to two legal criteria, which are:



and the nature of the disability, State of health) and



(b)) the volume of financial resources.



The second criterion is based on the fact that the system of public (universal

health insurance is limited) financial resources,

which are obtained on the basis of the obligation to pay the premiums on the General

health insurance (the CZECH NATIONAL COUNCIL Act No. 592/1992 Coll., as amended). It

However, it is not the same thing as the appellants argue, that would have provided health

care should be made conditional on the results of the economic activities of the health

the insurance companies. If the petitioners infer from the Decree of the Ministry of

health of the CR No. 426/1992 Coll., that modifies the obligation to financially

participate in health care, this is incorrect, as the obligation of the insured person

to pay part of the cost of health care is established by law the CZECH NATIONAL COUNCIL No. 550/1991

In section 11 (a). n).



The Constitutional Court has asked for the opinion of the Government of the Czech Republic also. On 7 December 2004.

4. in 1996 the Government of the Czech Republic has sent the following opinion:



In the opinion of the Government in General in cases where confers on the edit

a government regulation matérii that the Government must move

always within the law, which shall not depart, but may act

the stage matérii edit to the extent necessary details. This is also true of the

Regulation of the Government No. 216/1992 Coll., as amended.



Challenging article. 2 (2). 2, article. 4 and article. paragraph 41. 1 and 2 of the Charter, as well as

article. 2 (2). in the interpretation of article 4 of the Constitution. 31 of the Charter is, in the opinion of the Government of

aimless and incorrect. These provisions do not relate to its content and purpose

with meritem proposal. Article. 41 of the Charter, on which the appellants in their

the draft referring, provides only that constitutional rights under article. 31

The instrument may be a citizen of the Czech Republic to pursue only within the limits of the laws,

that govern the provision of health care. The word "limits" are here, however,

It does not apply to the law itself, but to the right to claim privileges.



On the contrary, the plaintiffs ignore article. 78 and article. paragraph 79. 3 of the Constitution, according to the

which are the Government and administrative authorities entitled to issue, within the limits of the law

the implementing legislation. From the above it is obvious, therefore, that the right of

the free health care is a basic human right. This conclusion

results from the fact that the Charter ranks among the basic law only,

that are listed in the second section of first her head, and as such are

explicitly marked. Even in this context, therefore, cannot rely on article.

4 (4). 2 of the Charter. The promoters will incorrectly believe that Health

the order is binding only for health insurance. The obligation of the insured person

to pay part of the cost of health care is determined by the law, specifically in the section

11 (a). n) and of the CNR) Act No. 550/1991 Coll., and not podzákonnými

the legislation.



The Constitutional Court also requested těsnopisecké records of the meetings of the

The Chamber of Deputies, where were discussed the amendment to Act No. 20/1966

Coll. and CZECH NATIONAL COUNCIL Act No. 550/1991 Coll. for the submission of a proposal is met

condition of locus standi under section 64 paragraph. 1 (a). (b)) Law No.

182/1993 Coll., on the Constitutional Court, since the proposal was submitted to 43 parliamentarians.



Representation of the President of the Chamber of deputies of the Parliament of the Czech Republic of

30 March. 11.1995 confirmed that the laws have been approved by the required majority

members of legislatures, were signed by the respective constitutional

agents and have properly announced. According to the article. 31 of the Charter, everyone has the right to

the protection of health. Citizens on the basis of public insurance the right to

free health care and to medical AIDS under conditions which

lays down the law. The Constitutional Court of the Czech Republic is already in several of the findings

(e.g. SP. zn. PL. ÚS 4/95, no 168/1995 Coll., SP. zn. PL-32/95, no.

112/1996 Sb.) dealt with the nature of the various categories of fundamental rights and

freedoms contained in the Charter.



In particular, in finding SP. zn. PL. ÚS 32/95 inferred that directly by the Charter

referred to different individual fundamental rights enables you to claim

While the concept of fundamental human rights is expressed by

any form of restriction of these rights is possible "without further" just the law

the rights referred to in the title of the fourth Instrument entitled "economic, social and

cultural rights ", which include article. 31, are specified explicitly

to applicable law and on its basis (in its limits) it is possible to

These rights and freedoms demand (article 41, paragraph 1, of the Charter).



For the overall assessment of the proposal in terms of the constitutional need to examine whether the

article. 31 of the Charter in its entirety constitutes a basic right to free

health care and medical equipment on the basis of public insurance,

or whether it is a constitutional norm, which has a different normative content.

Links to a mere semantic distinction in the Charter alone cannot

to compete, although the title itself second only "human rights."

but in the subtitle of the first section already includes "basic human

rights... ". Under each conceptual character to be recognize its normative

the contents of the. From this point of view is the fact that the Charter includes in itself the

the provisions on human rights, that the normative content are

different.



First of all, they are human rights that emanate directly from the human being,

and only this fact is the basis for the definition of their content and of the constitutional

the range. These are the values that contain the basic law for the preservation of the

the integrity of the human being and to ensure his dignity, such as. the right to

on the life, physical integrity and personal freedom. Such rights are

inalienable, imprescriptible and inalienable, unbreakable (article 1

Of the Charter). Their limits may be adjusted under the conditions laid down

The Charter and the law only (article 4, paragraph 2, of the Charter). It's the law

the base.



By contrast, the human rights and freedoms contained in the title of the fourth as the

"Economic, social and cultural rights" (semantically already without an adjective

"the base") require its implementation of the synergies of other factors;

do not immediately as the law above mentioned. Evident is

This article on pojednávaného. 31 of the Charter of the second sentence. The right to the

free health care and to medical AIDS here is narrower on the range

public insurance, and is therefore dependent on the amount of retribuci.

The whole of this title, the fourth in his summary is dependent on formal

the economic and social level of the State and with it the amount of the

level. This right falls under the regime of article. 4 (4). 1 of the Charter when

obligations may be imposed only on the basis of the law and its limits

and just when the preservation of fundamental human rights.



The normative content of article with constitutional standards. 31 of the instrument is further limited by the article. 41

paragraph. 1 of the Charter, because as the law may be invoked only within the limits of

the laws that these provisions are carried out. Also to be addressed

the question of whether the authorization referred to in article 11 (2). 4 of law No.

20/1966 Coll., as amended by the changes and additions, which the law grants

power, allows you to here příkladmo referred to entities closer to define

health care for the full or partial payment. and the amount of, and

to determine whether the facts are so designated in accordance with the constitutional

policy of the Czech Republic.



As has already been stated above, the right to free health care and to the

medical AIDS have citizens on the basis of public insurance and

conditions closer to the law. Therefore, if these conditions may

be regulated only by law, it is imperative that the extent and the way

their provision was circumscribed by the same legislative regime. Other than the

legislation would be a violation of the Charter, and thus the constitutionality.



You cannot admit that the definition of the extent of the amount provided by the health care

for the full or partial payment was left to edit other than

legal legislation. This would be the sphere of protection of fundamental rights and

freedoms came under the jurisdiction of the Executive, that such powers

is not entitled to.



The proposed repeal of section 1 of the CZECH NATIONAL COUNCIL Act No. 550/1991 Coll., as amended by law No.

161/1993 Coll. and no 59/1995 Coll., on the one hand regulates the general health

insurance, but also the conditions under which, on the basis of this law

health care is provided. § 2 (2). 2 of the same law provides, what includes

care fully or partially paid for by health insurance, without, however, in

paragraph 2 of the same section defines exactly the limits of care fully or partially

paid for by health insurance. In determining the ambit of care in these two

planes on the other provisions cited refers to podzákonný legal

prescription-order issued by the Minister of health of the CZECH REPUBLIC by Regulation No 216/1992 Coll., on the

the text of the regulation of the Government No. 50/1993 Coll. and regulation of the Government No. 149/1994 Coll.

Thus, it can be stated that the law of the CZECH NATIONAL COUNCIL No. 550/1991 Coll., as amended

regulations, contains the double mandate of the Government and actually modifies the basic

the concept of health care, other sectoral legislation. This procedure

is contrary to the Charter, as well as the constitutional order of the Czech Republic, as

to establish the limits of fundamental rights and freedoms of citizens can only be laws.



Define the statutory definition of the content and scope of the conditions and the way

the provision of the rights of the citizen to free health care is only possible

by the law. This obligation is unable to get rid of that legislature

authorizes the Executive authority to issue legal rules of lower legal force

than the law, that would determine the limits of these fundamental rights and freedoms. How

already from the above, is the adaptation of health care fully

or partly borne by the duplicity of modified several laws,

While the basic conditions, the extent and limits of the care provided in this way are

clearly addressed to sectoral regulations (Decree of the Ministry of

health of the CR No. 467/1992 Coll., as amended,

Decree of the Ministry of health of the CR No. 426/1992 Coll., as amended by

Decree No. 150/1994 Coll. and regulation of the order issued by the Minister of health of the CZECH REPUBLIC

No 216/1992 Coll., as amended).



Act No. 20/1966 Coll., as amended, section 11 (2). 2, 3, 4, and the law

The CZECH NATIONAL COUNCIL No. 550/1991 Coll., as amended, in section 2, positively and negatively

defining the scope of this outline of care with its split on health care

fully or partially paid for by health insurance. In the age of the insured

in the 18 years covered by the health care fully, even if the indication is on


care partly paid. In section 2 (2). the CZECH NATIONAL COUNCIL Act No. 550/1991 Coll.,

, as amended, provides that the Health regulations are binding for all

health insurance companies. Its binding force is not applied to all

health insurance entirely, as stated in the proposal, and is therefore not

the reason for the claim that the only health insurance company, and not the

other legal and natural persons.



If the claimant is namítán conflict with the Charter, in that it was

unconstitutionally appointed the second limiting factor, i.e. the volume of financial

resources to cover health care, is the limiting factor directly

included in the article. 31 the second sentence of the Charter, which is entitled to free citizens

health care and medical supplies bound for the constitutional requirement and

framework of public insurance. The system of public insurance is like any

the insurance system of limited financial resources,

gets on the basis of the obligation to pay insurance premiums for general health

insurance by law the CZECH NATIONAL COUNCIL No. 592/1992 Coll., as amended. This, however,

It is not identical with the plaintiffs ' claim that the health care provided is

subject to the results of the economic activities of health insurance companies. As follows

the alleged legal conditionality is not given.



The plaintiffs argue the claim that Czech Republic is obliged to

respect the right of each to achieve the maximum attainable level of

physical and mental health in accordance with article. 12 paragraph. 1 of the International Covenant on

economic, social and cultural rights, declared under no.

120/1976 Coll. Here it should be noted that this is a postulate, which according to the

paragraph 2 of the article consists of various measures, including

improve all the pages of the external living conditions and industrial

hygiene. With regard to health care itself, is contained in the provisions of the

paragraph 2 (a). (d)) of the cited article 12 of the International Covenant, where

States committed themselves to create conditions which would ensure that all medical

help and care in case of illness. This provision does not speak about the

the fact that medical assistance and care in disease. The International Pact

the conditions are therefore the Czech Republic fully catered.



For konstatovaných the facts arrive at the plenary of the Constitutional Court

The Czech Republic concluded that the provisions of section 11 (1). 4 of law No.

20/1966 Coll., as amended, and section 1, section 2 (2). 2 and 3 and section 13 (3). 3

and 5 of law no CNR. 550/1991 Coll., as amended, and implementing

the provisions referred to in the proposal of the group members are contrary to article. 4 (4). 1 and 2,

article. 31 and 41 of the Charter, and also article. 2 (2). 4 of the Constitution. Therefore, it was necessary to

Cancel. Because of the replacement of the cancelled provisions will require a new

legislative editing, its scope and complexity, it will be time

challenging the enforceability of the award has been set to 1. 4.1997.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.