No complaint was inadmissible. 28/2015 on the constitutionality control
Government Decision no.
377 of 16 June 2015 on the establishment of the National Centre for Prehospital Emergency Medical



Posted: 11/12/2015
in the Official Gazette

Nr. 332-339
Article No. 37
Effective Date: 09/04/2015

Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU,
Mr. Victor POPA, Mr. Igor
DOLEA, judges, Sorina Munteanu with Ms
Registrar,
Considering the complaint filed on 26 June 2015
Registered on the same date, examined the preliminary notification
said,
Considering documents and materials, deliberated on 4 September
2015 closed hearing
Delivers the following decision: tHE FACTS

1. On 26 June 2015, Mr. Vasile Bolea MP addressed the Constitutional Court complaint, requesting review the constitutionality of Government Decision no. 377 of 16 June 2015 on the establishment of the National Centre for Prehospital Emergency Medical Assistance.
A.
Two grounds for referral. The grounds for referral, exposed the author, may be summarized as follows.
March. At June 16, 2015 the Government adopted the Decision no. 377 on the establishment of the National Center for Emergency Medical-hospital, as health care institution published in the Ministry of Health, through the re Zonal Emergency Medical "Center" fusion of regional stations Emergency Medical Assistance "North", the Station area emergency medical assistance "South" and regional stations emergency medical assistance "Gagauzia" and the dismantling station emergency medical assistance from across mun. Chisinau: Centre, Buiucani, Botanica, Riscani and Ciocana, from the Institute of Medicine Expedite.
4. Pending adoption by the Government of the decision appealed against regional stations Emergency Medical "Center," "North," "South" and stop Zonal Emergency Medical Assistance "Gagauzia" constituted medical institutions self-funded, nonprofit, under Ministry of Health. Emergency medical stations from across mun. Chisinau - Centre, Buiucani, Botanica, Riscani, Ciocana - were the Institute of Emergency Medicine, self-financing institution under the Ministry of Health.
May. The author claims that the referral form a new emergency medical institutions, medical institutions through reorganization would represent a change in the entire health system of the Republic of Moldova. In this regard, the author of the notification considers that Parliament is the only authority competent to order the creation of institutions of urgent medical assistance.
June. Therefore, the author believes that the referral challenged normative act contrary to Art. 36 para. (3), art. 66 lit. d) art. 96 and 102 para. (2) of the Constitution.
B.
Relevant legislation in July. The relevant provisions of the Constitution (OJ 1994, no. 1) are:
Article 6Separaţia and cooperation of powers


"In Moldova the legislature, executive and judiciary are separate and cooperate in the exercise of their powers under the Constitution."

Article 36Dreptul to healthcare

"[...]
(3) The structure of the national healthcare system and means of protecting the physical and mental health of person shall be established by organic law.
[...] "
Article 66 Basic Powers


"Parliament has the following functions:
d) approve the main directions of domestic and foreign policy of the state.
[...] "

Article 96Rolul [Government]

"(1) The Government carries out domestic and foreign policy of the state and the general management of public administration.
(2) In the exercise, the Government uses its program of activities approved by Parliament. "
Article 102Actele Government


"(1) The Government shall adopt decisions, ordinances and provisions.
(2) Decisions shall be adopted for the application of laws.
[...] ".
August. The relevant provisions of the Law on health care No. 411-XIII of 28 March 1995 (OJ 1995, No. 34, art.373) are:

Article 2 Structure and fundamental principles of the health care system


"Health care system consists of units curative and preventive, sanitary-prophylactic, sanitary and anti-epidemic, pharmaceutical and other [...]."
Article 4Instituţiile medical


"(1) The healthcare institutions can be public or private, except that, according to law, can only be public.
(2) public health care institution is established by decision of the Ministry of Health or local public administration. Departmental public health care facility shall be established by decision of the specialized central authority.
[...]
(5) Regulations and nomenclature of medical institutions, regardless of the type of property and legal form of organization and the list of services provided they are approved by the Ministry of Health, except law enforcement and military authorities.
(6) Parliament reorganized by legislation, national health system, the drug and pharmaceutical activity.
(7) Founder approve the organizational and staff of medical institutions. "

Article 5Subordonarea establishments in the health care system

"(1) state educational institutions, scientific research institutions in the healthcare system and hospitals, dispensaries and other institutions republican republican health insurance is the Ministry of Health. Other medical institutions are subordinated to the Ministry of Health and local authorities.
[...] "
September. The relevant provisions of the Regulation on the organization and functioning of the Ministry of Health, structure and staff of the central apparatus thereof, approved by Government Decision nr.397 of 31 May 2011 (OJ 2011, no.95, 458) are the following:
"7. Ministry [of Health] shall:
1) develop and coordinate the implementation of public policies on health development, health services adapt to new needs by creating their proper infrastructure, adequate responsive to the needs of users, the burden of disease and by developing and coordinating public policies on reducing inequality population to necessary health services by improving the level and distribution of health services;
2) analyze, monitor and evaluate public policies developed, multilateral examines the social, economic, financial, etc. their assesses health risks in relation to health determinants: social, economic, behavioral, biological and environmental actors;
[...]
11) states, under the law, rules governing the organization, operation and regulation of the activities of public health institutions and private;
12) approved:
regulations of medical institutions, regardless of the type of property and legal form of organization and the list of services provided by them, with the exception of the institutions of law enforcement and military authorities;
Organizational rules of organization and functioning of subordinated institutions, unless otherwise provided by law;
Staff of public medical institutions subordinate;
Reorganization and name change of the registered public medical institutions subordinate;
Under the law, the personnel standards of public health institutions;
[...] "
10. The relevant provisions of Government Decision no. 377 of 16 June 2015 on the establishment of the National Centre for Prehospital Emergency Medical Assistance (OG, 2015, no. 150-159, art. 420) are:
"1. Be set up in the Ministry of Health, National Center for Emergency Medical-hospital, health care facility public self-funded, nonprofit the re Zonal Emergency Medical "Center" fusion (fusion) of regional stations Emergency Medical Assistance " Nord ", the regional stations emergency medical assistance" South "and regional stations emergency medical assistance" Gagauzia "and dismemberment (separation) stations of urgent medical assistance from across mun. Chisinau: Centre, Buiucani, Botanica, Riscani , hammers at the Institute of Emergency Medicine.
2. Ministry of Health:

Will create, within one month, the commission nominated to reorganize the institutions and ensure, through its reorganization;
Will develop and approve the structure, staff and rules scriptic National Center for Prehospital Emergency Medical Assistance in accordance with legislation.
March. Availability of personnel following the reorganization of regional stations Emergency Medical "Center" of regional stations Emergency Medical Assistance "North", the regional stations Emergency Medical Assistance "South", the regional stations Emergency Medical Assistance "Gagauzia", ​​and and emergency medical stations from across mun. Chişinău will be in accordance with labor legislation.
4. Heritage institutions subject to reorganization is transmitted successor of law in accordance with the Regulation on the mode of transmission of enterprises, organizations, state institutions, their subdivisions, buildings, structures, fixed assets and other assets, approved by Government Decision no. 688 of 9 October 1995 (Official Gazette of the Republic of Moldova, 1996, No. 10, article 45), as amended and supplemented.
May. Land Relations and Cadastre Agency will amend the cadastral documents in accordance with the provisions of this decision.
[...] "THE LAW A. The author

11 referral. According to the author of the referral, the reorganization through merger and dismantling emergency medical institutions in different regions represents a fundamental change in domestic policy of the state in health, which, pursuant to art. 66 lit. d) of the Constitution, it is exclusively the prerogative of Parliament.
12. Therefore, the author believes that referral Government Decision no. 377 of 16 June 2015 was adopted in breach of Article 36 para. (3) of the Constitution, which states that the structure of the national healthcare system and means of protection of physical and mental health of person shall be established by organic law and the art. 4 para. (6) Healthcare Law no. 411 of 28 March 1995 that the Parliament reorganized by legislation, national health system.
13. Additionally, the author of the notification mentions that Resolution no. 377 was adopted on 16 June 2015 by a government in resignation.
B. The Court's assessment
14. Examining the notification in terms of admissibility, the Court finds as follows.
15. The Court notes that under Article 135 para. (1) a) of the Constitution, 4 para. (1) a) of the Law on Constitutional Court and 4 para. (1) a) of the Code constitutional jurisdiction, notification on reviewing the constitutionality of government decisions within the competence of the constitutional Court.
16. The Court notes that Article 25 g) of the Law on Constitutional Court and 38 para. (1) g) of the Code of Constitutional law empowers deputy to petition the Constitutional Court.
17. The Court notes that the power conferred upon it by that Article 135 para. (1) a) of the Constitution requires the correlation between the contested rules and the Constitution, taking into account the principle of supremacy it.
18. The Court observes that the object of constitutional control is the Government Decision no. 377 of 16 June 2015 on the establishment of the National Centre for Prehospital Emergency Medical Assistance.
19. The Court finds that essentially contested measure provides for the creation of a new centralized public health institutions by reorganizing institutions with similar profiles.
20. The Court notes that the author of the notification of claimed violation of Art. 36 para. (3), art. 66 lit. d) art. 96 and 102 para. (2) of the Constitution.
21. Similarly, the author of the notification claimed that the contested decision was adopted by the outgoing government.
22. Referring to this last allegation, the Court holds that the author of the notification has not brought any argument which demonstrated that powers the outgoing Government to adopt the Decision.
23. In this regard, the Court notes its findings, set out in Resolution no. 7 of 18 May 2013 that a resigning government continues to manage public affairs in expectation of a new government. Administration of public affairs Government refers to decisions that are needed to run uninterrupted public service.

24. Referring to violation of Art. 36 of the Constitution, the Court recalls that the right to health is a fundamental human right, ensuring people's health is a national priority and an essential goal of the health system, whose aim is to achieve a high level of health and guarantee qualified nurses .
25. According to Article 36 para. (1) and. (3) of the Constitution, the right to health care is guaranteed, and the structure of the national healthcare system and means of protection of physical and mental health of person shall be established by organic law.
26. The Court notes that under the constitutional provisions establishing state policies in the sphere of health and determine the criteria for the organization and functioning health care system is a prerogative of the legislature.
27. Article 2 of Law No. 411 of healthcare March 28, 1995 provides that the health care system consists of units curative and preventive, sanitary-prophylactic, sanitary and anti-epidemic, pharmaceutical and other.
28. In the same context, the Court notes that according to Article 96. (1) of the Constitution, the Government carries out domestic and foreign policy of the state and the general management of public administration.
29. Thus, promotion of state policy in the field of public health protection is one of the main directions of activity of the government that is achieved by ensuring socio-economic conditions, the creation of a technical infrastructure and special funds for development of health care.
30. In this regard, the Court notes that Article 4 para. (2) Healthcare Law establishes the competence of the Ministry of Health to create medical institutions. Article 5 para. (1) thereof provides that research institutions in the healthcare system and hospitals, dispensaries and other institutions republican republican health insurance is the Ministry of Health.
31. The Court notes that, in accordance with the Regulation on organization and functioning of the Ministry of Health, structure and staff of the central apparatus thereof, approved by Government Decision nr.397 of 31 May 2011, pt. 7 paragraph (12), among the tasks of the Ministry of Health include approval of the reorganization and name change registered public medical institutions subordinate.
32. The Court notes that the contested act expressly provides that the National Center of pre-hospital emergency medical care is a health care institution subordinated to the Ministry of Health.
33. The Court notes that, in accordance with Article 4 of Healthcare Law No. 411, Annex 3 to the Government Decision nr.397 on 31 May 2011 contains a list of institutions under the Ministry of Health, including the newly formed institution by the contested decision.
34. In this context, relevant findings of the Court set out in Decision No. 1 of 30 January 2014, according to which "award by the legislature Ministry of Health, under Article 4 para. (2) Healthcare Law, the power to create health care institutions to be interpreted for the purposes of the latter's reorganize them. "
35. The Court also pointed out in that decision that determine the structure of the national system of health care and reorganization of the system of exclusive competence of Parliament, the Government's task is made establishment, reorganization and liquidation of medical institutions, within the approved structure by Parliament.
36. The Court held that the reorganization of medical institutions invoked national health referral system structure, governed by Article 2 of the Law on healthcare, not amended.
37. The Court notes that previously ruled on similar issues and decided that executive decision, ordering the reorganization of some public medical institutions, not the constitutional jurisdiction (Constitutional Court Decision No. 1 of 30 January 2014).

38. Therefore, applying the same reasoning, mutatis mutandis, as well as taking into account the principles of Article 6 of the Code of Constitutional Court finds that the subject of the notification can not be attributed field of Constitutional and therefore act concerned to be exempted from control of constitutionality without being examined on the merits in the light of fundamental rules and principles enshrined in the supreme law.
For these reasons, in accordance with Articles 26 para. (1) and 31 of the Law on Constitutional Court and Articles 61 para. (1) and 64 of the Code of Constitutional Court Constitutional

DECIDED:

1. Declare inadmissible complaints concerning constitutional control of Government Decision no. 377 of 16 June 2015 on the establishment of the National Centre for Prehospital Emergency Medical Assistance.
2. This decision is final, can not be subject to any appeal, shall enter into force upon adoption and shall be published in the Official Gazette of the Republic of Moldova.

CONSTITUTIONAL COURT PRESIDENT Alexandru Tanase