Reference no.:
Official Gazette RS, No. 77/98 and OdlUS VII, 238 | 28.10.1998
Findings and opinion of the Lower Medical Commission at the Regional Division Koper of the Institution of Health Insurance of Slovenia, dated 11 Mar. 1997

Act on Health Care and Health Insurance (Official Gazette RS, Nos. 9/92, 13/92, 13/93 and 9/96) (ZZVZZ), Arts. 82 and 83
Operative provisions:
By the opinion of the Lower Medical Commission at the Regional Division Koper of the Institution of Health Insurance of Slovenia, and by the earlier opinions of this commission made in the period until the finality of the decision on establishing the 1st category disability, the complainant's human rights and basic freedoms were violated. Arts. 82 and 83 of the Health Care and Health Insurance Act are unconstitutional for the reasons stated in the reasoning of this decision. The legislature will have to remedy the established unconstitutionality in 1 (one) year after the promulgation of this decision in the Official Gazette. Due to the violation of the right to a trial without undue delay, concerning the procedure of the Labor and Social Court, the constitutional complaint proceedings are dismissed. The constitutional complaint is rejected in the part that refers to the violation of the right to receive compensation and the determination of compensation by the Constitutional Court.
The meaning of the constitutional guaranty of the right to legal remedies is not in that it insures to the individual the right to file a legal remedy, but predominantly in that they may, by filing a legal remedy, effectively protect their legal interests. In cases of decisions on health (in an extreme case even on life) of the individual the respect for the right to effective legal remedies, and for a decision made without undue delay, is even more important. The Constitutional Court does not review a relationship between the patient and the doctor, which is first of all a professional and ethical question.

Doctors' decisions also bear influence on the rights of the individual in other areas: in the case at issue, on the rights arising from health insurance and employment relationship, and partially also on the rights from disability insurance. The legislature should regulate the procedure of claiming rights and the protection of the individual when the basis for the (non)recognition of rights is a decision of the doctor or the medical commission, in the manner to ensure, given that the opportunity to review professional decisions is also provided, a fast and effective possibility for the individuals to have recourse to legal remedies and judicial protection.

In the complainant's case the opinions of the medical commission interfered with his right to effective legal remedies. The complainant succeeded in judicial proceedings by his request for the recognition of sickleave, but only after a lengthy trial in which he also did not have the opportunity to entirely protect all his rights. Further opinions of the medical commission show that the medical commission as a professional medical organ in fact decides on the rights of the insured also in those cases which do not anymore concern the question of professional findings on health-based inability for work (the fact that the complainant was permanently unable for work was already established by the competent organ of the Institution of Pension and Disability Insurance of Slovenia (hereinafter: ZPIZ)).

The regulation in Arts. 82 and 83 of the Health Care and Health Insurance Act is not consistent with the right to effective legal remedies (Art. 25 of the Constitution) and, indirectly, also with the right to judicial protection (Art. 23 of the Constitution). The Constitutional Court determined for the legislature the longest possible time limit to remedy the unconstitutional statutory provisions. However, the Court did not already in these proceedings abrogate or abrogate ab initio the provisions of the Rules of Mandatory Health Insurance which regulate the procedure of claiming and protecting rights, and procedure before medical commissions, because this would practically entail a too much detailed interference with the provisions which might in a certain part be even constitutional, and whose abrogation could cause unnecessary gaps in the law and problems in the proceedings of claiming the rights arising from health insurance. The competent organ of ZPIZ will have to appropriately adjust the Rules with the Constitution after the adoption of statutory amendments.
Exercise and restriction of rights.
Equality in the protection of rights.
Right to judicial protection.
Right to legal remedies.
Right to compensation.
Right to personal dignity and security.
Right to social security.
Right to health care.
Determination of a time limit given to the legislature to adjust an unconstitutional statutory provision to the Constitution.
Constitutional complaint, the simultaneous review of the constitutionality of statute.
Constitutional complaint, decision on the violation of a constitutional right.
Constitutional complaint, the prior exhaustion of all legal remedies as a procedural condition for filing a constitutional complaint.
Health care, the establishment of disability, an appeal against a decision of the medical commission.
Dissenting opinion of a Constitutional Court justice.
Legal basis:
Constitution, Arts. 15, 22, 23, 25, 26, 34, 50, 51
Employment Relationships Act (ZDR), Art. 61
Pension and Disability Insurance Act (ZPIZ), Art. 27
Administrative Procedure Act (ZUP), Arts. 183, 185
Constitutional Court Act (ZUstS), Art. 46, Para. 1 of Art. 59
Document in PDF:
Type of procedure:
constitutional complaint
Type of act:
other acts
Date of application:
Date of decision:
Type of decision adopted:
Outcome of proceedings:
establishment – it is inconsistent with the Constitution/statute