Constitutional Court Declares Counter-Religious Decision Signed by Kurti

The indictment was released on Wednesday.

The court has found that the Hospital Service and University Clinic statue violates citizens' rights to health services.

Because the contested Act did not include mental care services in this list of service delivery, as defined by “L “”, the Court estimated that the right of citizens to health care, guaranteed by Article 51 [Health and Social Protections] of the Constitution, which the provision guarantees that this right is regulated by law, is limited through paragraph 1 of Article 11 of the context”, in the argument of the judgment.

Under the trial, the Stattuti is contrary to articles 51, 7 and 92 of the Kosovo Constitution.

The Hospital Service statue was approved in January this year by the Government of Kosovo and was signed by Prime Minister Albin Kurti.

The statue has been contested by the Federation of Health Unions, through the ombudsman at the Constitutional Court. He has also been supported by deputy and former Health Minister Andmend Zemaj.

Full announcement on the Constitutional Court's act:

The Constitutional Court of the Republic of Kosovo has published the indictment in the Ko141/24 case, submitted by the ombudsman, handed over to the Court based on authorisations defined in subparagraph 1 of Article 113 [Juridication and Authorised Palaces] of the Constitution of the Republic of Kosovo, in terms of assessing the constitutionality of Article 1 paragraph 11 (health services organisation in general hospitals) of Stout (QRK) no. 01-23 of the Kosovo Hospital Service and University Clinic adopted through the decision [Nr. 29/180] of the Government of the Republic of Kosovo, December 27, 2023, which has entered into force on January 8th, 2024.

The court, unanimously, has decided that (i) the request is acceptable; (ii) to state that Article 1 paragraph 11 (the organisation of health services in general hospitals) of the Statut (QRK) no. 01-23 for Hospital Service and University Clinic, approved through the decision [Nr. 29/180] of the Government of the Republic of Kosovo, December 27, 2023, is not in agreement with Article 1 on Article 51 [Health and Social Protection] concerning Article 1 and Article 7 and Article 92 [General Pristina] paragraph 92 of the Constitution of the Republic of Kosovo; (i) to order the Government of the Republic of Kosovo government, in accordance with Article 1 and Article 116 [Egenical effect] of the Constitution, taking the necessary actions to bring about the change of paragraphs to the 11th health clinics at <1st). 01-23 for Hospital Service and University Clinic, approved through the decision [Nr. 29/180] of the Government of the Republic of Kosovo, December 27, 2023, in accordance with

The constitution, the legislation in power and this Act; (iv) to find that until the completion and change of Article 1 paragraph 11 (Heaven of health services in general hospitals) of the Statut (QRK) no. 01-23 for Hospital Service and University Clinic, approved through the decision [Nr. 29/180] of the Government of the Republic of Kosovo, on December 27, 2023, general hospitals offer health services as set out in subparagraph 1.1 of Article 1. 05L-025 for Mental Health; as well (v) to reject the provisional demand. The ombudsman disputed the constitutionality of Article 1 paragraph 11 (Health Organization in General Hospital) of the Statut (QRK) No. 01-23 of the Kosovo Hospital Service and University Clinic, which stipulates that general hospitals offer health services as follows: (i) general surgery; (i) interno; (ii) pediatric; (iv) gynecology and obstetrics; and (v) medical emergencies. The ombudsman claimed that this provision of the contested Act, since it does not specify “mental care” as a secondary health service offered by general hospitals, “reforms” (i) health services for mental care for citizens; and (i) health and administrative staff in these hospitals, contrary to the spirit of Law No. 04/L-125 for Health, altered and fulfilled with Laws No. 08/L-043 and No. 08/ L-176 and Law No. 05L-025 for Mental Health; and that subsequently (ii) as an act adopted by the Government limits the constitutional rights defined in articles 7 [Velrat], 24 [Environance prior to the Law], 51 [Health and Social Protection] and 55 [Religion of Constitutional Rights and Freedoms], respectively. The ombudsman's claims were supported by: (i) Deputy Parliament, Mr. Armendi Zemaj; (i) head of the Federation of Kosovo Health Unions; and (ii) Chairman of the Kosovo Medical Oda, while being denounced by the prime minister of the Republic of Kosovo.

The Court Act first explains that based on subparagraph 1 of Article 2 Article 113 [Jurisdiction and Authorised Palaces] of the Constitution, the Ombudsman is authorised to contest the constitutionality of the laws, of the president and of the prime minister's decrees and of government regulations.

The court, in assessing the ombudsman's claims, referred to general constitutional principles and those of the Venice Commission for the principle of rule of law and rights restrictions and the definition of obligations with <x0 law”, defined among other things in Article 3 [Preciousal and Social Affairs], Article 4 [Forma of Governance and Separation of Power], article 7 [Vlerat], paragraph 1 of Article 51 [Saturity and Social Affairs] and Article 55 [Convincing the Constitution's Foundation Rights and Freedoms]. In the context of government's competencies, such as the body exercising executive power, the Act makes clear that its competence for “the adoption of judicial acts or regulations” is limited to constitutional definitions such as the following: a) “compatibility with the Constitution and laws”, set out in paragraph 4 of Article 92 of the Constitution; and b) “necessary for the application of the laws”, defined in paragraph 4 of Article 93.

In light of higher principles, the Act states that the contested Act has been issued for “the implementation of some law”, as required in paragraph 4 of Article 93 of the Constitution, as based on Article 23 (professional health services), as well as paragraphs 2 and 3 of Article 63 (Respital Service and University Clinic of Kosovo) of the upper Law for Sanit.

In the context of the evaluation of whether the contested Act has been drawn into “compliance with the Constitution and laws”, the Court explains that subparagraph 1.1 of paragraph 1 of Article 12 of Law No. 05L-025 for Mental Health specifically stipulates that mental care services are offered at the level of secondary health care through Psikiatrical departments in general hospitals, while Article 1 of the conflicted Act has defined the types of health services offered in general hospitals according to a depletion list of (i) general surgery; (i) Interno; (ii) Paddy; (ii) Gireecology and Ostebtecology (esterica); Emergency Surgery; Ecat.

Since the contested Act has not included mental care services in this list of service delivery, as defined by <x0 law”, the Court estimated that the right of citizens to health care, guaranteed by Article 51 [Health and Social Protection] of the Constitution, which the provision guarantees that this right is regulated by law, is limited through Article 1 of the other Act.

Consequently, the Court found that Article 1 of Article 11 (the General Health Services Organization in Conflicted Hospital) is in conflict with Article 1 in the 51 [Health and Social protection] concerning Article 1 and Article 4 and Article 92 [General Patries] of the Constitution of the Republic of Kosovo.