Pl. US 14/02
                               
                               
                               
The  contested provision clearly applies only to items mutually
connected  as  part  of payment-free health care,  i.e.,  items
which,  under  the heading of § 11 para. 1 let. d)  fall  under
"health  care  without direct payment, if … they were  provided
within  the  scope  and under the conditions provided  by  this
Act."  The ban on accepting direct payment thus applies,  above
all,  to  the performance of  payment-free health care  itself.
This  follows  from the wording of the Act:  "for  this  health
care";  from the previous sentence it is undisputed that "this"
care  means "health care without direct payment," and no other.
The  ban also applies to connection with the provision of  this
care,  i.e. again payment-free care. However, the text  of  the
Act  also  indicates  that nothing prevents  collecting  direct
payment  from  insured persons for health care provided  beyond
the  framework  of  conditions for payment-free  care.  In  the
Constitutional  Court's opinion, the contested  provision  does
not  change  the  purpose and meaning  of  the  Act,  but  only
emphasizes protection of the sphere of payment-free health care
from  attempts  to  infringe on its integrity  and  narrow  its
scope.   This  interpretation  is  constitutional   and   quite
proportionate to the meaning of the Act.


The  Plenum  of the Constitutional Court decided today  in  the
matter of a petition from a group of deputies of the Chamber of
Deputies of the Parliament of the Czech Republic to annul  part
of  the  second  sentence of § 11 para. 1 let. d)  of  Act  no.
48/1997  Coll.,  on Public Health Insurance  and  Amending  and
Supplementing   Some  Related  Acts,  as   amended   by   later
regulations, expressed by the words "or in connection with  the
provision of that care", as follows:
  The petition is denied.


                           REASONING

I.
On  17  May  2002 the Constitutional Court received a  petition
from  a group of deputies, dated 14 May 2002, to annul part  of
the  second sentence of § 11 para. 1 let. d) of Act no. 48/1997
Coll.,   on   Public   Health  Insurance   and   Amending   and
Supplementing   Some  Related  Acts,  as   amended   by   later
regulations  (the "Public Health Insurance Act"), expressed  by
the words "or in connection with the provision of that care."
   The  Constitutional Court determined from the attached  page
with  signatures of the deputies that the conditions  specified
in  §  64  para.  1 let. b) of Act no. 182/1993 Coll.,  on  the
Constitutional  Court,  as amended by later  regulations,  (the
"Constitutional Court Act") have been met, and the petition was
signed by 54 deputies. Deputy Marek Benda was appointed as  the
petitioners'   representative   in   proceedings   before   the
Constitutional Court. After removing certain formal defects  in
the  petition, which was done by a filing from the petitioners'
representative  that the Constitutional Court  received  on  11
July   2002,  the  Constitutional  Court  could  consider   the
substance of the petition.
   The  group of deputies is of the opinion that the  contested
provision of the Act is inconsistent with Art. 3 para. 3,  Art.
4  para.  4,  Art. 26 and Art. 31 of the Charter of Fundamental
Rights and Freedoms. To begin with the petitioners pointed  out
that  in  their  opinion the contested provision  reaches  into
issues  which stand apart the area of regulation of the act  on
general health insurance (they pointed in particular to  its  §
1). They allege that the provision has no direct connection  to
the  other  parts  of  the Act and in practice  rules  out  the
provision of health care and services which are not covered  by
public health insurance funds.
   The petitioner see inconsistency with Art. 26 para. 1 of the
Charter of Fundamental Rights and Freedoms in the fact that the
enumerated  group  of persons (doctors or other  expert  health
care  workers, health care facilities) is forbidden to  receive
payment from another group of persons (the insured) for care or
services  provided  which  are not covered  by  general  health
insurance,  if  they are connected to the provision  of  health
care  which is covered by that insurance. This allegedly  leads
to  considerable  limitation of the provision of  health  care.
Under Art. 26 para. 2 of the Charter of Fundamental Rights  and
Freedoms, a statute may set conditions and limitations  on  the
exercise of certain professions or activities, but according to
the  petitioners  the contested provision interferes  in  these
rights  in  a manner inconsistent with Art. 4 para.  4  of  the
Charter  of  Fundamental  Rights and Freedoms,  not  preserving
their  essence  and significance. If a person is authorized  to
provide  health  care, and if there is, in addition  to  health
care  fully covered by general health insurance, also care  not
covered  by this insurance, they say it practically  rules  out
the  right  to conduct business if we prevent that person  from
accepting payment for that care, if it was provided to a person
insured  by  public health insurance and if it is connected  to
the provision of health care which is covered by general health
insurance.  Thus,  the contested provision  allegedly  also  de
facto  rules out the operation of health care facilities  which
are  not  in  a contractual relationship with health  insurance
companies.
   Concerning  the contested provision's claimed  inconsistency
with Art. 31 of the Charter of Fundamental Rights and Freedoms,
the  petitioners stated that the ban on accepting  payment  for
providing health care or services not covered by public  health
insurance  also  leads to limiting the health care  offered  to
citizens  –  insured  persons  –  whereby,  according  to   the
petitioners, they are prevented from exercising their right  to
protection  of  health, enshrined in the cited article  of  the
Charter of Fundamental Rights and Freedoms.
    The   petitioners  also  stated  that  certain  procedures,
measures,  healing preparations, or health care  aids  are  not
covered  by  public health insurance at all (e.g. acupuncture),
some  only  in a limited number (e.g. care connected to  extra-
uterine pregnancy a maximum of three times in one's life),  and
some  only partially (75% of the price for certain health  care
technology  means). In some cases only "basic" health  care  is
covered (e.g. the economically least demanding version  of  the
health  care  means). Thus, the Act defines  payment-free  care
under  Art.  31  of  the  Charter  of  Fundamental  Rights  and
Freedoms,  but  according  to  the  petitioners  the  contested
provision forbids health care facilities to accept payment from
an  insured  person for care not included in that  payment-free
care, if it is connected with the provision of covered care. In
terms of the "intensity of connection" (cf. the contested  text
"or  in  connection  with  the provision  of  that  care")  the
petitioners  divided this connected care or services  into  the
following categories:
  - inseparable care (cases where the Act provides only partial
coverage  by  public health insurance, e.g.  by  a  percentage,
common in, for example, dentistry)
  - closely connected care (a suitable preparation or treatment
method exists for improving or maintaining a patient's state of
health  which is not covered by public health insurance,  or  a
certain basic health care is covered, but health care of higher
quality is available in the alternative, but is not covered)
   -  connected care (the insured person wishes to arrange  the
provision of further care, following the care covered by public
health insurance, but this is not covered)
   -  loosely  connected care (a health care facility  provides
health  care  covered  by  public health  insurance,  which  is
connected  to  the provision of other, non-covered  services  –
e.g.  spa care, with "contributory" spa care only the treatment
procedures are covered, not housing and meals).

   According  to  the  petitioners,  it  is  evident  from  the
foregoing  that  "connections of  various  types  of  intensity
undoubtedly  existing  between care covered  by  public  health
insurance  and non-covered health care." The level  of  payment
for  non-covered health care or health care provided by a  non-
contractual health facility is regulated under § 6 of  Act  no.
526/1990 Coll., on Prices, as amended by later regulations, and
is regularly updated in the Bulletin of the Ministry of Finance
under  §  10  of  that Act. Of course, the contested  provision
permits  accepting  payment only in a case where  the  provided
care is not connected to covered health care.
  The petitioners concluded that they consider Art. 26 and Art.
31  of  the  Charter of Fundamental Rights and Freedoms  to  be
violated by a situation where, in their opinion, a citizen,  an
insured person, practically has no opportunity to decide on the
manner  in which he will care for his health, and only  because
the  method chosen by him is not fully covered by public health
insurance  (either because payment is ruled out or  restricted,
or because a given health care facility is not in a contractual
relationship  with  the appropriate health insurance  company),
but  is  connected  to care covered by that insurance.  If  the
health  care facility chosen by the insured person nevertheless
provides the service and accepts payment for it, it breaks  the
law   and   exposes  itself  to  the  penalty  of  having   the
authorization for its activity revoked.

II.
In   accordance  with  §  42  para.  3,  4  and  §  69  of  the
Constitutional  Court Act, the Constitutional  Court  sent  the
petition  in question to the Chamber of Deputies and Senate  of
the  Parliament of the Czech Republic for position  statements,
and  also  requested  a  written position  statement  from  the
Ministry of Health.

Statement of the Chamber of Deputies of the Parliament  of  the
Czech Republic
  The statement of the Chamber of Deputies of the Parliament of
the  Czech  Republic  of  20  September  2002,  signed  by  its
chairman,  PhDr.  Lubomir Zaoralek, states that  §  11  of  the
Public Health Insurance Act contains a list of the rights of an
insured  person, which include the right to health care without
direct payment, if it was provided to him in a scope and  under
conditions  provided by that Act, which defines the  scope  and
conditions  under  which  health  care  is  provided.  The  Act
provides  which  health  care  is  covered  by  public   health
insurance and which is not, without forbidding direct  payment.
Thus,  health  care is provided without direct payment  or  for
partial payment, or – in the case of health care not covered by
health  insurance  –  for  full payment.  In  order  to  ensure
substantive  performance  in  providing  health  care,   health
insurance  companies enter into contracts on the  provision  of
health  care  with health care facilities. In  that  case,  the
health care facility receives payment from the health insurance
company  for the care provided. An item of treatment  is  paid,
and  there  is  no  room for further payments  by  the  insured
persons.
   In  the opinion of the Chamber of Deputies, the petitioners'
objection  that the contested provision rules out the operation
of  health  care  facilities which are  not  in  a  contractual
relationship  with health insurance companies  is  unjustified.
Health  care  can  also be provided by health care  facilities,
which  are  not  in a contractual relationship  with  a  health
insurance  company.  Thus, health care  providers  can  act  as
entities conducting business independently, in their own  name,
on their own responsibility, for purposes of achieving profits,
and  it  is up to the wishes and financial ability of  citizens
whether they choose such health care facilities.
   The  purpose  of  the  contested  provision,  which  forbids
accepting  payment from the insured person in  connection  with
providing  health  care  which is, by law,  covered  by  public
health  insurance is to prevent a situation where provision  of
this  care would depend on the financial ability of the insured
person. In the opinion of the Chamber of Deputies, annulling it
would  make  room  for medical facilities and doctors  who  are
contractually  tied  to a health insurance company  to  require
various  fees (e.g. registration or entry) from insured persons
for  whom  seeking health care is not a choice but a necessity.
This  would deny the right enshrined in Art. 31 of the  Charter
of  Fundamental Rights and Freedoms, as well as the purpose  of
the Public Health Insurance Act, which is meant to secure it.

Statement of the Senate of the Parliament of the Czech Republic
  The statement of the Senate of the Parliament of the CR of 20
September  2002,  signed  by  its  chairman,  Doc.  JUDr.  Petr
Pithart,  states that the Senate discussed the draft  amendment
of  the  Public  Health Insurance Act (Act no.  2/1998  Coll.),
which inserted the contested provision into this Act, on 12 and
13  November 1997 at its 9th session in its 1st term of office,
and  passed a resolution whereby it returned the draft  to  the
Chamber  of  Deputies with amending proposals. The  Chamber  of
Deputies discussed the returned amendment, and reconfirmed  the
originally passed text. During discussion of the Act in  Senate
bodies there was, among other things, discussion concerning the
proposed  treatment  of § 11 para. 1 let. d).  The  result  was
passage of the "comprehensive" amending proposal, in which  the
Senate  addressed,  in  particular,  the  issue  of  the  legal
certainty  for  persons  who can be subject  to  penalties  for
violating the cited provision. However, as far as the contested
provision is concerned, the Senate approved a text very similar
to  that passed by the Chamber of Deputies and merely attempted
a  clearer  expression of its purpose ("a health care  facility
may  not  accept any payment from the insured person  for  this
health care or in direct connection with providing that care").
  The Senate approved this text of the amending proposal in the
belief  that this text (and thus also the contested  provision)
was  consistent with The Constitution of the CR and the Charter
of Fundamental Rights and Freedoms. The Public Health Insurance
Act  distinguishes  care which is covered by health  insurance,
non-covered, and partially covered. In those cases  where  care
is  covered, it strictly follows the wording of Art. 31 of  the
Charter of Fundamental Rights and Freedoms, and does not permit
taking  any  payment whatsoever from insured persons  for  that
care.  The  definition  of  what is  non-covered  or  partially
covered  care  is contained in other provisions of  the  Public
Health  Insurance Act. According to the Senate's statement,  if
the  petitioners' opinion, that the contested provision forbids
the relevant person from accepting payment for providing health
care  or services not covered by public health insurance,  were
correct, the second sentence of § 11 para. 1 let. d) would have
to  read,  for  example, as follows: "A doctor or other  expert
worker  in health care or a health care facility may not accept
from  an insured person any payment for health care covered  by
health   insurance,  including  payment  for   non-covered   or
partially  covered  health  care,  even  though  that  care  is
provided in connection with covered care."
   The statement concludes by stating that the Senate is not of
the opinion that the contested provision restricts the right to
conduct  business  in  health  care  beyond  the  framework  of
constitutional  possibilities; in this regard the  Senate  also
could not agree with the petitioners' conclusions that citizens
are prevented from exercising, according to their wishes, their
right  to protection of health under the cited article  of  the
Charter of Fundamental Rights and Freedoms.

Position of the Ministry of Health of the Czech Republic
   In  its written position of 2 October 2002, the Ministry  of
Health  stated,  in  particular, that if an insured  person  is
provided  health care within the scope and under the conditions
provided by the Public Health Insurance Act, the insured person
has the right to receive this care without direct payment. This
right  is  "mirrored"  by  the obligation  of  doctors,  expert
workers  in  health care and health care facilities to  refrain
from  conduct which would limit or negate this right. According
to  the  Ministry,  there  is no practical  difference  in  the
wording  of  the contested provision, "for this care"  and  "in
connection  with  providing  this  care";  both  are  aimed  at
securing  the insured person's undisputed right to health  care
without  direct payment, if it is provided within the scope  of
the  Act. On the contrary, the Ministry of Health believes that
if  the contested provision were annulled, and the text "or  in
connection  with providing this care" were deleted, this  right
of  the  insured  person could be relativized.  The  issues  of
direct  payment of provided health care are wider.  This  is  a
conceptual matter, exceeding the provision of the Public Health
Insurance  Act  and  the petition from the group  of  deputies.
Therefore, the Ministry is of the opinion that these  questions
should  be  addressed in the context of the entire health  care
policy of the CR; therefore the petition to annul the contested
provision is, in that regard, non-systemic.
   The Ministry further noted that the contested provision does
not  rule  out  providing health care which is not  covered  by
public  health insurance. Nothing prevents taking  payment  for
health  care which exceeds the definition in the Public  Health
Insurance Act. Likewise, according to the Ministry, there is no
inconsistency  with the right to conduct business  and  conduct
economic activity. Non-state health care facilities and doctors
have  the right to conduct business in accordance with Act  no.
160/1992  Coll.,  on  Health  Care  in  Non-State  Health  Care
Facilities, as amended by later regulations. However, according
to  the  Ministry's position, collecting money from patients  n
the  form  of,  e.g.  various entry or  registration  fees  and
sponsor  gifts can not be considered “doing business.”  It  can
not  agree  that  the  provision  in  question  rules  out  the
operation  of  health  care  facilities  which  are  not  in  a
contractual  relationship with a health insurance  company.  An
insured person is not entitled to health care covered by health
insurance  in  any health care facility whatsoever,  but  in  a
facility  which  has entered into a contract  with  his  health
insurance  company  (an exception is the  provision  of  urgent
health care).
   Concerning  the division of care into "inseparable,  closely
connected,  connected,  and loosely  connected,"  the  Ministry
stated that this is a misleading and self-serving division. One
must  begin with the question of to what extent and under  what
conditions  health care is covered under the Act. Its  position
further observes, concerning the "analysis of intensity,"  that
the   Act   distinguishes  partially  covered  care  only   for
medications  and  health  care means in  outpatient  care.  Co-
payment for medications and health care means in inpatient care
is  ruled out by the Act. With other health care this  care  is
paid  fully or not paid (according to the appropriate  appendix
to the Act).
  According to the Ministry of Health, doctors could understand
deletion  of  the  contested provision  of  the  Public  Health
Insurance Act to mean that it is possible to collect money from
patients without any limitations whatsoever, whether for health
care  or  connected care. If health care standards existed  and
were  published, and the Health Insurance Act clearly  provided
that  such  standard  care is covered  by  insurance  and  that
whatever  exceeds the standard is subject to direct payment  by
the  insured person, the situation would be different. However,
the  problem  lies  in the fact that no standards  or  standard
medical  procedures are described anywhere,  and  if  a  doctor
believes that a particular item of health care provided is  not
covered by health insurance, because the insurance company only
covers  a  certain procedure, health care means or  medication,
then  the  patient  has no opportunity to verify  whether  that
really  is  so and what the insurance company actually  covers.
The  existing Act only states what kind of care is covered, not
what  procedure  that  care  is to  be  provided  by  or  which
medications  or health care means are to be used  in  providing
it.

III.
The Constitutional Court first, in accordance with § 68 para. 2
of the Constitutional Court Act, reviewed whether the Act whose
provisions  the  petitioners claim to be  unconstitutional  was
passed   and  issued  within  the  bounds  of  constitutionally
provided  jurisdiction  and  in a  constitutionally  guaranteed
manner. It is evident from the statements of both houses of the
Parliament of the Czech Republic, as well as from the  obtained
Chamber  of  Deputies documents, information on the  course  of
voting  and other accumulated materials, that the Public Health
Insurance  Act,  as  well as the amendment which  inserted  the
contested provision into it (Act no. 2/1998 Coll., which amends
and  supplements  Act  no.  48/1997  Coll.,  on  Public  Health
Insurance and Amending and Supplementing Some Related Acts,  as
amended by Act no. 242/1997 Coll.), were passed and issued in a
constitutionally  prescribed manner and within  the  bounds  of
constitutionally  provided jurisdiction, and that  the  quorums
provided  in  Art.  39 para. 1 and 2 of the  Constitution  were
observed.  The  draft  of the amendment to  the  Public  Health
Insurance  Act  was returned by the Senate to  the  Chamber  of
Deputies  with  amending  proposals. The  Chamber  of  Deputies
discussed  the returned draft on 2 December 1997  at  its  17th
session  in  its  second  term of office  and  reconfirmed  its
originally  passed  version (out of 183 deputies  present,  171
were  in  favor and 9 were against). Similarly, the Chamber  of
Deputies  at  its 18th session on 13 January 1998 outvoted  the
veto  of  the  president of the republic, (out of 192  deputies
present 114 were in favor and 47 were against). For the sake of
completeness, we can point out here that the reasons for  which
the  Act was returned by the Senate and vetoed by the president
of  the republic basically did not concern the substance of the
contested provision.
   The  petition  from  the  group of  deputies  to  annul  the
contested provision did not receive the necessary majority of 9
votes, and as a result the Constitutional Court denied it.
  The Public Health Insurance Act provides in § 11 para. 1 let.
d)  that  an insured person has a right to "health care without
direct  payment,  if  it was provided  in  a  scope  and  under
conditions  provided  by  this Act. A doctor  or  other  expert
worker  in  health  care may not receive any payment  from  the
insured  person  for  this health care or  in  connection  with
providing this health care." In part five, in § 13 et seq.  the
Act  defines  health care which is covered and not  covered  by
health  insurance, and appendix 1 to the Act gives  a  list  of
health  care items not covered by health insurance  or  covered
only under certain conditions.
  The petitioners, requesting the annulment of part of the text
of § 11 para. 1 let. d) of the Act, the words "or in connection
with  providing  this care," take as their starting  point  the
fact  that under the Act, apart from health care fully  covered
by  public health insurance, there is a whole series of  items,
means, preparations, and services which are not covered at all,
or only partly, or only when conditions provided by the Act are
met. The petitioners believe that broadening the formulation of
the  ban  on  receiving  payment from the  insured  person  for
providing  payment-free  health care  with  the  words  "or  in
connection with providing this care" makes the text so  general
that  it  includes  basically all health care,  including  that
which is not covered, which – in their opinion – will lead to a
situation  where  health care facilities,  in  order  to  avoid
suspicion  of  violating the principle of  payment-free  health
care, will also avoid such items, means and services as do  not
fall  under  the concept of payment-free health care.  In  this
conception,   in  the  petitioners'  opinion,   the   contested
provision  completely  "rules out  providing  health  care  and
services which are not covered by general health care insurance
funds." From there the petitioners then conclude that there  is
violation  both  of the freedom to do business,  guaranteed  by
Art.  26  para.  1  of  the Charter of Fundamental  Rights  and
Freedoms, and of everyone's right to protection of health under
Art.  31  of  the Charter of Fundamental Rights  and  Freedoms,
because the insured person does not have the right to decide on
the  manner  in which he will care for his health only  because
the  manner  he  chooses is not fully covered by public  health
insurance.
  This interpretation appears to the Constitutional Court to be
completely self-serving and disproportionate, as the  contested
provision  clearly applies only to items mutually connected  as
part of payment-free health care, i.e., items which, under  the
heading of § 11 para. 1 let. d) fall under "health care without
direct  payment,  if they were provided within  the  scope  and
under  the  conditions  provided  by  this  Act."  The  ban  on
accepting  direct  payment  thus applies,  above  all,  to  the
performance  of payment-free health care itself.  This  follows
from  the wording of the Act: "for this health care"; from  the
previous  sentence  it  is undisputed that  "this"  care  means
"health  care  without direct payment," and no other.  The  ban
also  applies  to connection with the provision of  this  care,
i.e. again payment-free care. However, the text of the Act also
indicates that nothing prevents collecting direct payment  from
insured  persons for health care provided beyond the  framework
of  conditions  for  payment-free care. In  the  Constitutional
Court's  opinion, the contested provision does not  change  the
purpose  and meaning of the Act, but only emphasizes protection
of  the  sphere  of payment-free health care from  attempts  to
infringe   on   its  integrity  and  narrow  its  scope.   This
interpretation is constitutional and quite proportionate to the
meaning   of   the  Act.  As  is  known,  if  a  constitutional
interpretation  of  a  statutory  provision  is  possible,  the
Constitutional  Court  gives  it priority  over  annulling  the
contested  provision. That is the situation in this  case.  The
Constitutional Court is also of the opinion that the  contested
provision  does  not  address the question whether  an  insured
person  is or is not supposed to contribute payment for  health
care expenses or in what scope and in what circumstances he  is
to do so. That is another area of the public health care issue.
   The  Constitutional Court also did not  find  the  contested
provision  to be inconsistent with Article 26 para.  1  of  the
Charter of Fundamental Rights and Freedoms, and inclined toward
the  position of the Ministry of Health, which refers  in  this
regard  to  protection of doctors' freedom to  do  business  in
accordance  with Act no. 160/1992 Coll. Nor can we  agree  that
the  contested provision rules out the operation of health care
facilities which are not in a contractual relationship  with  a
health  insurance company. The insured person's entitlement  to
payment-free  care, under the act on general health  insurance,
quite  naturally  concerns  care  provided  in  a  health  care
facility which has a contract with a health insurance company.
   After  the Constitutional Court determined that the  reasons
cited    in   the   submitted   petition   do   not   establish
unconstitutionality of the contested provision,  it  considered
whether there are other reasons which would justify the opinion
that  it  is  unconstitutional. It considered, above  all,  the
question  whether the contested provision does not  exceed  the
framework of the constitutional authorization of Art. 31 of the
Charter  of  Fundamental  Rights  and  Freedoms,  under   which
citizens  have  a right, on the basis of public  insurance,  to
payment-free  health  care  and  to  health  care  aids   under
conditions  specified by statute, i.e. in a scope  which  maybe
widened or narrowed by statute; only within the bounds of  that
statute can one seek to enforce this constitutional right (Art.
41  of  the  Charter of Fundamental Rights and  Freedoms).  The
Public  Health Insurance Act, as amended by later  regulations,
is  undoubtedly  such  a  statute. Thus,  on  that  basis,  the
provision  on  payment-free  health  care  covered  by   public
insurance,  completed with the phrase "or  in  connection  with
providing   this  care,"  is  constitutional,  as   it   is   a
specification which, in scope, is only a detail in the  overall
framework of health care and does not violate, but rather makes
more  precise, the principle of payment-free health care  under
Art.  31 of the Charter of Fundamental Rights and Freedoms.  In
view  of  its scope, the contested amendment also  can  not  be
reinterpreted  as  if it represented considerable  interference
with  the  principles of regulation of health insurance  or  as
interference   with  the  proportionate  equivalence   of   the
protection  of  insured persons. Deliberating  the  possibility
that annulling the contested provision of the Act might send  a
signal  which would make easier the reconstruction of  payment-
free  care toward greater co-payments by insured persons  (e.g.
payments  for  hospital food, for prescriptions, for  treatment
items,  and  so  on)  appears to the  Constitutional  Court  to
completely  deviate from the task which is  now  before  it  in
connection  with the petition from the group of  deputies.  The
possible removal of the amendment, as a sort of first  step  to
changing  the  health  care policy of  the  state,  would  mean
exceeding the jurisdiction of the Constitutional Court  in  the
direction  of  a constitutionally inadmissible  position  of  a
"positive   legislator,"  an  instigator  of  new   regulations
regardless  of  the  fact  that  the  contested  provision   is
consistent with the Constitution. Such a step belongs on to the
Parliament  of the CR, whose task it is to weigh the  abilities
of  public  funds and evaluate the appropriateness of  applying
the  principles  of equivalence and solidarity in  the  overall
regulation  of  health  care  in  a  new  situation.  In   this
situation,  the  Constitutional  Court  merely  refers  to  its
judgment  of  12 April 1995, file no. Pl. US 12/94, promulgated
under no. 92/1995 Coll., and also published in volume 3 of  the
Collection of Decisions of the Constitutional Court on  p.  123
et seq., and the dissenting opinions attached to it.
   The  Constitutional Court is aware that these questions  are
part  of an entire complex of public health care issues,  which
is  based  on  certain  constitutional  principles,  and  whose
overall  regulation  should  respond  to  solutions  which  are
current  in the developed democratic states and internationally
agreed or recommended positions.
    Therefore  the  Constitutional  Court  also  considered   –
peripherally – premises which can, though indirectly,  have  an
influence  on  the  concept of the individual  provision  which
represents  only a particular detail of the overall  regulation
of general health insurance.
   In  its deliberations, the Constitutional Court begins  with
the  constitutional concept of protection of health,  which  is
enshrined  in  Art.  6  para. 1 of the Charter  of  Fundamental
Rights  and  Freedoms, under which "everyone has the  right  to
life,"  and in Article 31 of the Charter of Fundamental  Rights
and   Freedoms,  which  reads:  "Everyone  has  the  right   to
protection of health. Citizens have the right, on the basis  of
public  insurance, to payment-free health care  and  to  health
care aids, under conditions provided by statute."
   The  statutory  framework  for providing  health  care  also
corresponds to the Charter of Fundamental Rights and  Freedoms.
Act no. 20/1966 Coll., on Care for the Health of the People, as
amended,   in  Art.  III  begins  with  the  premise   that   a
prerequisite  for  care  for  the  health  of  the  people   is
"immediate application of the results of scientific research in
practice,"  and  provides  in § 11 para.  1  that  health  care
facilities  shall provide health care "in accordance  with  the
currently  available  knowledge of medical science."  Likewise,
Act  no.  123/2000  Coll., on Health Care  Means  and  Amending
Certain Related Acts, also imposes an obligation § 1 to provide
health  care "through suitable, safe and effective health  care
means."
   This  sets, in accordance with constitutional principles,  a
developmental trend for public health care toward quality, full-
value  and effective care on the basis of the equality  of  all
insured  persons.  For constitutional and statutory  principles
this  care  can not be divided into a kind of basic,  "cheaper"
but  less  appropriate and les effective care,  and  an  above-
standard, "more expensive" but more suitable and more effective
one.  The  difference between standard and above-standard  care
may   not  consist  of  differences  in  the  suitability   and
effectiveness  of  treatment. The law does  not  regulate  what
health  care a doctor or health care facility may provide,  but
what  kind it must provide in the general interest so that  all
insured  persons  have  a right, in the same  degree,  to  such
treatment  and medication as meets their objectively determined
needs  and  the requirements of the appropriate  level  and  of
medical  ethics. Thus, the developmental orientation of  health
care,  supported  by  laws, is based not on  shifting  "better"
items of health care from the sphere of payment-free care  into
the  sphere directly paid by insured persons, but, in contrast,
toward  improving the items provided payment-free  from  public
health   insurance.   This   concept   also   corresponds    to
international  conventions, such as  the  Convention  on  Human
Rights    and    Biomedicine,   and    recommendations,    e.g.
Recommendation Rec (2001)13, of the Committee of  Ministers  of
the  Member States of the Council of Europe, which was approved
on  10 October 2001. The Committee of Ministers emphasized that
Article  3  of  the Convention on Human Rights and  Biomedicine
requires  that  entities concluding contracts  on  health  care
ensure equal access to health care of appropriate quality.  The
Constitutional Court adds that Article 4 of this Convention  of
also imposes an obligation "to perform all measures in the area
of   care   and  health  in  accordance  with  the  appropriate
professional obligations and standards." The Convention entered
into  force  for  the  Czech Republic on 1  October  2001  (no.
96/2001 Coll. of International Agreements).
   Appendix 1 to the Czech Public Health Insurance Act gives  a
list  of  health care items not covered by health insurance  or
covered only under certain conditions; appendix 2 part A  gives
a  list  of  medicinal substances, where it defines  substances
fully  covered,  partially covered, and not covered  by  public
insurance,  and  part  B  gives  a  list  of  substances   with
limitations  on  indications  and  prescription.   Appendix   3
contains lists of health care technology means, not covered and
covered  by health insurance, and appendix 4 concerns dentistry
products  identified to be covered by an insurance company,  or
indicating  the maximum amount of coverage. It is evident  from
this regulation as well that the contested provision of the Act
does not and can not exclude from health care the provision  of
services which are not covered by compulsory insurance.
   It  can be acknowledged that the existing framework  is  not
sufficiently  clear,  so that an ordinary  insured  person  can
sometimes  be  asked for direct payment even  when  it  is  not
justified.  If  public  health insurance  is  to  approach  the
European standard, it would evidently be necessary for the  Act
to  clearly  and  understandably define the  possibilities  for
private payment by insured persons, evidently similarly  as  in
developed  European  states,  Germany,  Switzerland,  etc.  For
example,  in  Germany, although around 10% of inhabitants  have
private  insurance  with  commercial insurance  companies,  the
quality of private care is provided on the same level as public
health insurance and under common state-wide directives. Public
hospitals  provide  the same health care items,  including  the
same  types  of health care materials which are  fixed  to  the
human  body,  e.g. endo-prostheses, both for privately  insured
persons and for persons insured in statutory hospital insurance
companies, including the scheduling of patients for health care
items  according to expert criteria, and not according  to  the
ability  to  contribute  to payment.  In  public  hospitals,  a
private  patient  or a publicly insured person  can  order  and
separately  pay  for, as supplemental items and services,  only
officially approved items with officially confirmed prices, the
provision  of  which does not affect the level of health,  e.g.
special accommodations, food, choice of doctor or nurse,  or  a
different type of bandage or medication.
   Nevertheless, if we turn away from the overall issues of our
health  care  and  return to the petition  from  the  group  of
deputies,  it  is  impossible not to  see  that  the  contested
provision of the amendment to the Czech Act concerns  only  one
problem, and a partial one, in the overall regulation of public
health care. Therefore, the task of the Constitutional Court is
not  to evaluate this overall regulation of health care or  the
amendment  of the Act as a whole. The purpose of the  contested
provision is undoubtedly to prevent the unlawful collection  of
money  for  those  provided  services  which  are  covered   by
compulsory, general health insurance, whether they are  various
registration fees and administration fees or payments for those
types  of  health care and treatment items which are identified
as  "better,"  above-standard and more expensive,  even  though
they  fall into the sphere of services fully covered by  public
health insurance.
   After reviewing the petition from the group of deputies  the
Constitutional Court concluded, for all the foregoing  reasons,
that  the  petition  to annul the contested  provision  is  not
justified, and therefore denied it.

Notice:  Decisions  of  the Constitutional  Court  can  not  be
appealed.

Brno, 4 June 2003


Dissenting Opinion
of  Constitutional  Court judges P.H., J.M. V.C.,  V.C.,  V.G.,
J.M.,  A.P., filed under § 14 of Act no. 182/1993 Coll. to  the
Constitutional Court's judgment in the matter of  the  petition
from  a  group  of deputies of the Chamber of Deputies  of  the
Parliament  of the Czech Republic to annul part of  the  second
sentence  of § 11 para. 1 let. d) of Act no. 48/1997 Coll.,  on
Public  Health  Insurance and Amending and  Supplementing  Some
Related Acts, as amended by later regulations, expressed by the
words "or in connection with providing this care."

This  dissenting opinion, filed to the verdict of the  judgment
of  the  relevant  minority, which denies the petition  from  a
group  of deputies of the Chamber of Deputies of the Parliament
of the Czech Republic to annul part of the second sentence of §
11  para. 1 let. d) of Act no. 48/1997 Coll., on Public  Health
Insurance and Amending and Supplementing Some Related Acts,  as
amended  by  later regulations, expressed by the words  "or  in
connection with providing this care," is based on the following
arguments:
   The  decisive reason for the relevant minority's  vote  (see
judgment file no. Pl. US 3/96) is the statement that the  cited
statutory provision's inconsistency with Art. 26 and Art. 31 of
the  Charter, claimed by the petition, misses the  purpose  and
meaning  of that provision. This is because, as stated  in  the
judgment's  reasoning in this regard, "the contested  provision
only emphasizes protection of the sphere of payment-free health
care from attempts to infringe on its integrity and narrow  its
scope,"  and  "the  contested provision does  not  address  the
question  whether an insured person is or is  not  supposed  to
contribute  payment for health care expenses or in  what  scope
and in what circumstances he is to do so.  That is another area
of the public health care issue."
  The statutory provision in question was incorporated into the
Public  Health Insurance Act by an amendment passed  under  no.
2/1998  Coll., in the version proposed by deputy Eva Fischerova
on  17 October 1997 in the second reading of the discussion  of
the  government draft of the Act, which amends and  supplements
Act  no. 48/1997 Coll., on Public Health Insurance and Amending
and Supplementing Some Related Acts, in the Chamber of Deputies
of  the  Parliament  of the Czech Republic.  Deputy  Fischerová
justified  her  proposal with these arguments:  "No  regulation
addresses the unlawfulness of the step of accepting payment  in
connection with providing health care covered by public  health
insurance,  in  relation to all health care facilities.  It  is
these  now  so unpleasantly familiar, psychologically  extorted
contributions  to administration, so-called "gifts"  in  direct
relation   to   provided   care,  or  fees   for   illegitimate
identification cards, which are required in amounts of  200-400
crowns, or registration fees, which are illegally introduced in
a  number  of  doctors'  practices.  I  am  convinced  that  my
proposal,  which  I am now presenting, is not redundant.  In  a
situation  where doctors are called on by their representatives
to unlawfully require payment for care covered by public health
insurance  or direct connection with this care, it is necessary
to  use  all opportunities to protect the constitutional rights
of  citizens by establishing appropriate penalties, even if for
a  limited period, in the amendment of Act no. 48 of 1997 Coll.
Although the rights of the insured citizen are enshrined in the
legal  norms  which  I  mentioned, the lack  of  penalties  for
accepting  payment  in Act no. 48 leads to a paradoxical,  even
absurd  situation. To a certain extent penalties are  optional,
in the sense of an authorization for health insurance companies
and  state administration bodies, so that access to health care
can  not  become  worse. In these cases, a state administration
body  will  be  obliged  to  use its  authorization  to  impose
financial penalties.
   The meaning and aim of the statutory provision at issue thus
became to remove the cited unclear interpretative points in the
existing regulation and to clearly confirm that double  payment
for  provided health care was ruled out. In response  to  cases
appearing in practice, this meant in particular double  payment
for items which are not direct health care but are tied to it.
   The  undersigned judges (the "judges") fully agree with that
part of the judgment's reasoning which interprets the contested
provision  in  such  a way that it does not prevent  collecting
direct  payment from insured persons "for health  [inserted  by
the judges] care provided above the framework of conditions for
payment-free  care."  The  distinction  in  the  Public  Health
Insurance  Act between health care without direct  payment  and
health care with the possibility of such payment can be derived
just  from  the first sentence of the contested provision,  and
the  amendment in question only confirms that distinction.  The
judges are aware that the petitioners claimed the contrary, and
that thus the analysis in the judgment's reasoning convincingly
and constitutionally contradicts their claim.
   However,  the judges point to the settled case  law  of  the
Constitutional Court, under which this court is bound  only  by
the proposed judgment, not the reasoning, of the petition. They
concluded  that  the contested provision is  inconsistent  with
Art. 31 of the Charter in connection with Art. 2 para. 2 of the
Charter and Art. 1 para. 1 of the Constitution, for a different
reason than the petitioners claim.
   Under  Art.  31 of the Charter, "everyone has the  right  to
protection of health. Citizens have the right, on the basis  of
public  insurance, to payment-free health care  and  to  health
care  aids, under conditions provided by statute." This statute
is  Act  no.  48/1997  Coll. on Public  Health  Insurance  (the
"Act"), which governs public health insurance and the scope and
conditions under which health care is provided on the basis  of
this Act (§ 1 of the Act).
   The  Act  creates  for  the citizen an obligatory  insurance
relationship,  the  content of which is  set  by  the  Act.  In
setting  the  content of this relationship, the legislature  is
bound  by  the constitutional order, above all the  substantive
scope  of the constitutional right to protection of health.  In
regulating public health insurance this Act can not exceed this
substantive  framework  for "protection  of  health,"  and  may
regulate  only  the  provision of care  which  serves  for  the
"protection  of health" (a ban on arbitrariness).  The  insured
person  transfers to the insurance company, for payment,  risks
which  can  arise  to  him  through danger  to  his  health  or
infringement of his health. In contrast, insurance premiums may
not be used to pay things, steps, procedures, or services which
do  not  serve to protect the insured person's health,  but  to
satisfy other needs, e.g. in securing living conditions.
  The contested provision is systemically placed in the part of
the Act "Rights and Obligations of the Insured Person." One  of
the  obligations of the insured person is the obligation to pay
premiums  to  the appropriate health insurance company,  unless
this  Act  provides otherwise [§ 12c)]. On  the  basis  of  the
contested  provision, the insured person has the more  detailed
right  to  "health care without direct payment"  ("payment-free
health  care"). By amendment of no. 2/1998 Coll. the  contested
provision was supplemented to the effect that in future one can
not  accept  any payment from the insured person not  only  for
"payment free health care" itself, but also "in connection with
providing this care," i.e. in connection with providing payment-
free  health care. Therefore, the decisive factor is  that  the
care  be provided in connection with payment-free health  care,
without the contested provision determining its nature in  more
detail.  This  leads to the conclusion that the  obligation  is
imposed for care to be provided which is not "health care," but
is  care provided by a health care facility in connection  with
payment-free  health care (e.g. providing food,  or  cleaning).
Other insured persons are also required by law to contribute to
this type of care.
   This  type  of  payment-free care is a  deviation  from  the
constitutionally protected right to protection of health.  Art.
31  of  the  Charter  gives  authorization  for  a  statute  to
determine  the  conditions for providing payment-free  "health"
care,  not care which is not health care but is a component  of
satisfying   a   person's  necessary  needs  independently   of
protection  of health. In this regard the statute exceeded  the
limits  of the constitutional order by making it impossible  to
collect  from insured persons direct payment for care which  is
not health care and which, in and of itself, does not serve  to
protect the health of the insured person. It thus creates  non-
objective and unreasonable differences between insured  persons
to whom such payment-free non-health care is provided and those
insured  persons  to  whom  it is not provided,  although  both
categories  are  forced  to  satisfy  the  corresponding  needs
independently of any simultaneously provided health care.
   Even if the legislature's intent does not correspond to  the
foregoing  analysis  of  the contested  provision,  the  judges
emphasize  that  in  the case of a provision  which  implicitly
imposes  an  obligation  on an individual  (the  obligation  to
contribute  to  payment-free non-health care of  other  insured
persons), one can not rely on ratio legis when evaluation  such
a provision's consistency with the constitutional order, but it
is  necessary in the first place to take an objective  analysis
into account (see also Art. 2 para. 3 of the Constitution). One
of  the most important democratic European lawyers of the  20th
century, Gustav Radbruch, expressed, in this regard, the thesis
of  "content independence of the law," which fully  applies  to
this  case  of  the  constitutionality of part  of  the  second
sentence  of § 11 para. 1 let. d) of Act no. 48/1997 Coll.,  on
Public health Insurance, as amended by later regulations:  "The
will  of  the legislature is not a method of analysis, but  the
goal of analysis and the result of analysis, an expression  for
the   a  priori  necessity  of  systemically  not  inconsistent
analysis  of the entire legal order. Therefore, one can  state,
as  the  will  of  the legislature, something which  was  never
present  as  the conscious will of the author of a statute.  An
interpreter  can understand a statute better than  its  creator
did;  the  statute may be wiser than its author –  it  must  be
wiser   than   is  author."  (G.  Radbruch,  Rechtsphilosophie.
Studienausgabe.  Hrsg. R. Dreier, S. Paulson, Heidelberg  1999,
p. 107.)
  The  wording of the contested statutory provision thus opened
the  question  of  payment  for care other  than  health  care,
although  connected  to  it,  from  public  (statutory)  health
insurance.  It  thereby  opened  the  question  of  the   cited
provision's  inconsistency with Art. 31 of the  Charter,  which
presumes  only payment for items of health care from that  type
of  insurance. It must be emphasized that finding part  of  the
second  sentence  of § 11 para. 1 let. d) of  Act  no.  48/1997
Coll.,  on  Public  Health  Insurance,  as  amended  by   later
regulations,  to be inconsistent with Art. 31  of  the  Charter
does  not  automatically give rise to the necessity  of  direct
payments  for  acts  other  than  items  of  health  care,  but
connected to them. The instrument of contractual insurance  can
be considered a more standard approach to solving this problem.
    The   Constitutional  Court  spoke  on  the  constitutional
safeguards of social security primarily in its judgment in  the
matter  Pl. US 12/94. It said the following: " in all  existing
systems  of  social security, the principles of solidarity  and
equivalence are represented in varying degrees. Every system of
social  security  brings  with it the  advantaging  of  certain
social groups, depending on whether the viewpoint of solidarity
is  given preference or whether the principle of equivalence is
given priority. This is reserved to the legislature, which  can
not  proceed arbitrarily, but in setting preferences must  take
into  account the public values pursued." In other  words,  the
court  provided  that  it  is the legislature's  obligation  to
transparently express the ratio of the components of solidarity
and  equivalence  in  the  social insurance  system  (including
health insurance). It also provided that this division may  not
be  arbitrary. In the opposite case, i.e. in the absence of the
element of equivalence, the institution loses its legal nature,
cease to be insurance, and acquires the character of a tax.
   Thus, Art. 31 of the Charter, in connection with Art. 41 and
Art.  4  para.  4  of the Charter, gives rise  to  the  insured
person's  fundamental  right  for a  component  of  equivalence
transparently  determined by the legislature in  public  health
insurance,  in  such a degree as preserves the  nature  of  the
legal  institution of insurance and does not change it  into  a
tax.
   The statutory provision contested by the petitioner does not
meet  these  constitutional safeguards. Not only does  it  make
room  for  coverage  of care other than health  care,  even  if
connected to health care, by statutory health insurance, but it
does  not, either in and of itself, or in connection with other
provisions  of  the  Public  Health Insurance  Act,  contain  a
transparent  delineation  of the ratio  of  the  components  of
solidarity and equivalence from the viewpoint of covering items
of health care by public health insurance.
   The  judges  can not agree with that part of the  judgment's
reasoning which anticipates their dissenting opinion and  gives
it  the  function  of  a signal which is to  make  easier  "the
reconstruction  of  payment-free treatment toward  greater  co-
payments by insured persons," whereby it allegedly exceeds  the
jurisdiction of the Constitutional Court "in the direction of a
constitutionally inadmissible position … regardless of the fact
that   the   contested   provision  is  consistent   with   the
Constitution."  The dissenting opinion clearly indicates  that,
although the subjective intent of the legislature apparently is
in  accordance with the constitutional order, in contrast,  the
resulting  objective product of its legitimate  intent  is  not
consistent  with  the constitutional order. The  Constitutional
Court  is  called  on  by  the  Constitution  to  evaluate  the
constitutionality of valid sub-constitutional regulations,  not
the  aims which led to their being passed. Therefore, the  part
of  the  sentence in the contested provision expressed  by  the
words  "or in connection with providing this care" should  have
been annulled.

Brno, 4 June 2003