Radovan Zecevic to the Constitutional Court

The Petitioner, Radovan Zecevic, challenged a provision from the Law on Health Insurance (the Law) which excluded any health conditions resulting from the conduct of a criminal offence or a misdemeanour from being funded under the Law. Zecevic argued that the provision was contrary to the right to equality, the right to social security, and the right to health under the Constitution.

The Law established a right to basic health services, including primary, secondary, and tertiary care under certain circumstances. It also excluded certain services from funding, including aesthetic operations, spa and health resort treatment, medicines not included in the national medicine list, certain long-term treatments, and prosthetic devices. The contested article was one of these exclusions, and stated that compulsory health insurance could not be used to cover health services provided to treat a health condition resulting from the conduct of a criminal offence or a misdemeanor by the insure (Art.10, para.1, item 15, the Law).

The Court held that the challenged provision was unconstitutional. It considered that the basic purpose of the Law was to realize the constitutional rights to health and social security by funding health services through regular contributions. As such, under the Law, a defined basic package of health services was guaranteed unless the insuree failed to make contributions. The cause of the illness or injury which gave rise to the need for health services was not relevant to the law except under the challenged provision.

The Court considered that all of the exclusions to funding except the challenged provision were clear and defined. The challenged provision left open whether or not the exclusion for treatment resulting from a crime or misdemeanor applied only to perpetrators, or to victims as well. It also left open whether or not the provision applied to health services otherwise guaranteed under the Law. Finally, the provision required the health insurer to determine the guilt of the insuree, which was an issue that could only properly be decided by the courts. The provision therefore limited the right to health insurance irrespective of the fact that the legal conditions for providing insurance were met, placing perpetrators of crimes in an unequal position compared to other insurees. The imprecise formulation of the provision left a vast amount of discretion to insurance clerks, in violation of the fundamental principle of the rule of law under the Macedonian Constitution.

“The limiting of the right to health insurance of citizens for committing a criminal offence or a misdemeanor, irrespective of the fact that the person fulfills the conditions stipulated by the law for realization of the right to compulsory health insurance, is disproportionate and places these persons in an unequal position compared to the rest of the insurees.” Section 6.

“According to the Court, the [challenged] provision is troublesome considering that its objective is to not let the burden of costs for treatment fall on the Fund in cases of treatment of the insuree from consequences of the criminal offence, or misdemeanor that he himself has committed. This, according to the Court, represents a limitation of the right to compulsory health insurance for reasons relating to a person’s behavior, or his guilt for a committed criminal offence, irrespective of whether the person fulfills the conditions stipulated by the law for using the rights from health insurance, or irrespective of the fact that the insuree regularly and neatly fulfills the obligations relating to payment of a contribution, thus placing these persons in an unequal position compared to the rest of the insured persons.” Section 6.