Citizens’ Association “Polio Plus” to the Constitutional Court

Citizens’ Association “Polio Plus” (the Association) challenged provisions of the Law on Mental Health (the Law) that regulated whether or not a person with mental illness would be given the right to possess personal items, such as clothing or items for hygiene, while resident in a mental health facility. These provisions stipulated that certain persons with mental illnesses would be granted the right to have personal items in the facility, while others would not, based on the state of their mental health. The State Sanitary and Health Inspectorate then had a discretionary right and duty to order that persons with mental illnesses be provided with personal items.

The Association claimed this provision was unconstitutional, because it violated the rights to property and to freedom from discrimination under Articles 9 and 30 of the Macedonian Constitution. It argued that a mentally ill person’s right to possess personal items in the facility was at the discretion of the Inspectorate, and that the Inspectorate could therefore impose limitations on a mentally ill person’s constitutional right to property that did not exist for other Macedonian citizens.

The Court held that the challenged provisions were consistent with the Constitution. In the Court’s opinion, the relevant provision granted a right to own certain personal items in the mental health facility. The right could, however, be limited if the person’s mental state was such that the limitation was needed to protect the health of the patient or the health of other persons. Such a determination was to be made by a specialist doctor on a medical basis.

The Inspectorate then had the power to overrule the medical determination and allow the exercise of the right where it had previously been limited. The provisions therefore enabled the right of proprietorship, rather than violated it. They granted either the exercise of the right or a more limited version of the right, based on the need to protect the health of the patient and other persons from possible physical harm arising from the patient’s mental illness. In the opinion of the Court, whether or not the Inspectorate might arbitrarily deny the right to proprietorship did not affect the constitutionality of the law, only the legality of its implementation, and were not relevant to the case at hand.

“Both Article 14 point 7 and the contested Article 39 point 8 of the Law use the state of health of the patient as a starting point, based on which it depends whether the person with mental illness will exercise the provided rights or he/she will be allowed to exercise limited rights. This is stipulated in such a manner so to protect the health of the person itself as well as the health of third parties from possible physical harm which could arise from the nature of the illness.” Section 4.

“As a result of the above stated reasons, as well as in line with the fact that limitation of certain rights to persons with mental illness is always with function of protection of their health, there is no space for appraisal of the contested provision, neither in respect of equality in the exercise of rights nor in its accordance with Article 9 of the Constitution.” Section 4.