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DECIDES:
1. To admit the complaint of the Members in Parliament, Mr. Artur Reșetnicov and Mr. Igor Vremea.
2. To declare unconstitutional the Law No. 261 of 1 November 2013 on the College of Physicians of the Republic of Moldova.
3. The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Gazette of the Republic of Moldova.
JUDGEMENT
ON CONSTITUTIONAL REVIEW
of the Law No. 261 of 1 November 2013 on the College of Physicians of the Republic of Moldova
(Complaint No. 16a/2014)
CHISINAU
15 May 2015
In the name of the Republic of Moldova, The Constitutional Court composed of:
Mr. Alexandru TĂNASE, President, Mr. Aurel BĂIEŞU,
Mr. Igor DOLEA,
Mr. Victor POPA, judges,
with the participation of Mrs. Ludmila Chihai, registrar,
given the complaint lodged on 5 March 2014 and registered on the same date,
having examined the complaint referred to in a plenary public sitting, given the file documents and proceedings,
deliberating in closed plenary sitting, Delivers the following Judgment:
PROCEEDINGS
1. The case originates in the complaint lodged with the Constitutional Court on 5 March 2014, according to 135 para. (1) let. a) of the Constitution, art. 25 para. (1) let. g) of the Law on the Constitutional Court and art. 38 para. (1) let. g) of the Constitutional Jurisdiction Code, by the Members of Parliament, Artur Reșetnicov and Igor Vremea, on the constitutional review of articles 2, 3, 4, 6, 7, 9, 20, 21 and 22 of the Law No. 261 of 1 November 2013 on the College of Physicians of the Republic of Moldova.
2. The authors of the complaint claimed that certain competences of the College of Physicians are contrary to articles 1 para. (3), 16, 20, 72 para. (3), 96, 107, 114 of the Constitution.
3. Based on the Decision of the Constitutional Court of 25 March 2014 the complaint was declared admissible, without prejudicing the merits of the case.
4. In the process of examining the complaint, the Constitutional Court requested the opinions of the Parliament, President of the Republic of Moldova and Government.
5. In the public hearing of the Court, the complaint was supported by Mr. Igor Vremea. The Parliament was represented by Sergiu Bivol, Head of the Private Law Unit within the General Legal Division of the Parliament Secretariat. The Government was represented by Andrei Șveț, Head of the Legal Division of the Ministry of Health.
THE FACTS
6. On 1 November 2013, the Parliament of the Republic of Moldova adopted the Law No. 261 on the College of Physicians of the Republic of Moldova, which represents a professional organization of the representatives of medical profession in the country, of public law domain, without patrimonial goals, non-profit, with the main aim to monitor and supervise the exercise of medical profession and to maintain the prestige of the profession within social life in line with the legislation.
7. According to article 6 of the law, membership of the College is obtained after lodging the application, based on the free consent of the doctor, paying the registration fee.
8. According to the law, the College has the competence: to assess the level of doctors’ professional qualification; to equate the educational documents obtained abroad; to participate in drafting policies in the area; to endorse the establishment of medical clinics, etc.
9. As well, the College is entitled to apply disciplinary sanctions to its members for performed professional activity.
RELEVANT LEGISLATION
10. The relevant provisions of the Constitution (M.O., 1994, No. 1) are as follows:
Article 20
Free Access to Justice
“(1) Any individual is entitled to effective satisfaction from the part of competent courts of law against actions infringing upon his/her legitimate rights, freedoms and interests.
(2) No law may restrict the access to justice.”
Article 23
Right of Every Person to Be Aware on His/Her Rights and Duties
„[...]
(2) The State shall ensure the right of every individual to be aware of his/her rights and duties. For this purpose the State shall publish and make accessible all the laws and other normative acts.”
Article 36
Right to Health Protection
“(1) The right to health protection is guaranteed.
(2) The minimum health insurance provided by the State shall be free of charge.
(3) The structure of the national health security system and the means aimed at protecting the physical and mental health of the individual shall be provided for by organic law.”
Article 72
Categories of Laws
“(1) Parliament is endowed to adopt constitutional, organic and ordinary laws.
(2) Constitutional laws are aimed at revising the Constitution.
(3) The organic laws shall govern:
a) electoral system;
b) organization and carrying out of referendum;
c) organization and functioning of Parliament;
d) organization and functioning of the Government;
e) organization and functioning of the Constitutional Court, the Superior Council of Magistracy, courts of general and administrative jurisdiction;
f) organization of local administration, of the territory, as well as the general regulation of local autonomy;
g) organization and functioning of political parties;
h) procedure for establishing exclusive economic zones;
i) general legal regulation of private property and inheritance;
j) general regulation of labor relationships, trade-unions and social protection;
k) general organization of the education system;
l) general regulation of religious cults;
m) regulation of the state of national emergency, martial law and war;
n) criminal offences, punishments and the procedure of their execution;
o) granting of amnesty and pardoning;
p) other fields where the Constitution provides for the necessity of adopting organic laws;
r) other fields where the Parliament recommends the passing of organic laws.
(4) The ordinary laws shall intervene in any field of social relationships, except for the spheres regulated by constitutional and organic laws.”
Article 96
Role of the Government
“(1) The Government ensures the carrying out of the state internal and external policy and shall exercise the general management of the public administration.
(2) In the exercise of its prerogatives, the Government shall be guided by its programme of activity endorsed by the Parliament.”
Article 107
Specialized Central Public Administration
“(1) Specialized central bodies of the State are ministries. They shall bring into practice, according to the law, the policy of the Government, its decisions and orders, as well as lead the entrusted fields of activity and are responsible for their activities.
(2) In order to lead, coordinate and exercise the control the national economy, as well as other fields, which do not directly fall within the competence of the ministries, other administrative authorities shall be set up, according to the law.”
Article 114
Administration of Justice
“Justice shall be administered in the name of the law only by the courts of law.”
11. The relevant provisions of the Law No. 261 of 1 November 2013 on the College of Physicians of the Republic of Moldova (M.O., 2013, No. 290, art. 792) are as follows:
Article 1
Legal status of the College of Physicians of the Republic of Moldova
“(1) The College of Physicians of the Republic of Moldova (hereinafter referred to as the College) represents a professional organization of the representatives of the medical profession in the country, of public law domain, without patrimonial goals, nonprofit, having the main objective the activity to monitor and supervise the exercise of the medical profession, to preserve the prestige of the profession within the social life in line with the legislation.
(2) The College is an apolitical organization.
(3) The College has the status of a legal entity with institutional autonomy, which exercises its duties independently.
(4) The activity of the College is regulated by the provisions of the Law on Health Protection, the Law on the Exercise of the Medical Profession, the Law on Rights and Responsibilities of the Patient, normative acts developed by the Ministry of Health, Charter of the College and other normative acts in force.”
Article 2
Areas of activity of the College
“As public and professional autonomy, the College exercise the duties set by the law in the following main areas of activity:
a) professional – scientific and education;
b) professional ethics and medical deontology;
c) professional jurisdiction and litigations;
d) endorsements and accreditations;
e) economic-social;
f) administrative and organizational.”
Article 3
Competences of the College in the area of health
“In the health area, the College:
1) participates, through endorsement, in developing policies in the area, and namely:
a) submits proposals to the Ministry of Health regarding the development of national clinical guides and protocols, medical-economic standards, criteria and conditions for ensuring the quality of the medical act;
b) submits proposals to the Ministry of Health regarding the development of criteria and standards for equipping the offices of medical practice;
2) participates in the activity of group of experts for assessing and accrediting medical-sanitary institutions;
3) participates, through its representatives, in the contest commission for filling in the vacancies in the public medical-sanitary institutions.”
Article 4
Competences of the College in the area of professional training and development of doctors
“In the area of professional training and development of the doctors, the College:
1) participates, through endorsement, in development and approval of policies in the area of professional training and development of doctors, and namely:
a) submits to the Ministry of Health proposals for amending and completing the Framework-Code of Ethics (Deontological) of medical and pharmaceutical workers;
b) equates the documents of post-graduate medical and pharmaceutical education obtained abroad;
2) ensures the professional independency of the doctor, as well as his/her right to take decisions in exercising the profession, and namely:
a) evaluates the level of professional qualification of the doctors;
b) suggests proposals to the Ministry of Health regarding the occasional exercise of the doctor’s profession on the territory of the Republic of Moldova by foreign citizens for the purpose of exchange of experience in the training-didactical or curative area;
3) defends the dignity and promotes the rights and interests of its members in all the areas of activity; defends the honor, freedom and professional independence of the doctor, as well as his/her right to decision while exercising the medical act, and namely:
a) represents the interests of the doctors during the public debates regarding the health policies and programs and informs the members of the College about the progresses in the area of health;
b) promotes professional competence and loyal concurrence in exercising doctor’s profession;
c) endorses the establishment of medical offices and clinics, regardless of their type of ownership and legal organizational form;
4) promotes the principles of respecting by doctors of the laws and other normative acts regulating the exercise of medical profession, obligations related to patients and public health, and namely:
a) examines petitions and claims of the individuals and legal entities regarding the cases of doctors’ deviation from the rules of professional ethics, medical deontology and rules of good professional practice;
b) applies disciplinary professional sanctions to its members according to the provisions of the present law, informing the Ministry of Health and notifying, as needed, the competent bodies.”
Article 6
Registration in the College
“(1) The membership of the College is obtained after lodging an application based on the free consent of the doctor.
[…]
(4) The membership of the College is confirmed by a membership certificate, which is issued after paying the registration fee set according to the Statute of the College.
[…]”
Article 20
Professional disciplinary liability of the College members
“(1) The members of the College are held professionally disciplinary liable for non- observance of the legislation regulating the exercise of the medical profession, of the rules of good professional practice, of the Frame-Code of Ethics (Deontological) of medical and pharmaceutical workers, of the present law and of the Charter of the College, of the decisions and executory decisions of the leadership bodies of the College.
(2) The disciplinary professional sanction is applied by the territorial council within a month from identification of the deviation. In case of contesting the decision of the territorial council, the case is reviewed by the National Council within a period of up to 3 months since the date of contestation.
(3) The employer is obliged to notify in written the territorial council of professional body about any deviation, according to para. (1), committed by the College member.
(4) The application of the disciplinary professional sanctions to the College member does not exclude his/her criminal, administrative or civil liability according to the legal provisions.
(5) The courts will communicate, ex-officio, to the College the final court decisions regarding the actions committed in relation to the exercise of the medical profession on the territory of the Republic of Moldova.”
Article 21
Professional disciplinary sanctions
“(1) The National Council may apply to the College members the following disciplinary professional sanctions:
a) warning;
b) obligation to perform professional training;
c) suspension of the qualification category during the period of repeated post- graduate training or withdrawal of the qualification category in case of non-compliance with the qualification degree in the attestation commission;
d) relegation from the held position for a period up to one year;
e) withdrawing the quality of College member based on art. 7 para. (5).
(2) When applying the disciplinary professional sanction, they should take into account on compulsory basis the seriousness of the deviation, circumstances in which it was committed, previous activity and conduct of the College member.
(3) Repetition of a disciplinary professional deviation before the lifting or expiration of the applied sanction represents an aggravating circumstance which is taken into account when applying the new sanction.”
Article 22
Modality of disciplinary professional sanctioning
“(1) The disciplinary professional sanction is applied by the National Council.
(2) The disciplinary professional deviation is examined in the presence of the physician that held disciplinary professional liability. In case of unreasoned repeated absence of the phisician, the disciplinary professional deviation is examined in his/her absence.
(3) For every disciplinary professional deviation, one single sanction is applied.”
Article 23
Contesting the decision of disciplinary professional sanctioning
“The decisions of the National Council regarding the disciplinary professional sanctions may be contested in the litigations’ council, which operates within the College.”
Article 24
Modality of lifting the disciplinary professional sanctioning
“(1) The disciplinary professional sanction is applied for a period of one year.
(2) The disciplinary professional sanction may be lifted earlier by the National Council upon the proposal of the territorial council, based on the employer’s proposal.
(3) The disciplinary professional sanction applied for not paying the membership fees expires upon the full payment of the due sums.
(4) The procedure of examining the petitions and the claims of individuals and legal entities regarding the cases of violation by doctors of the rules of professional ethics and medical deontology, of the rules of good professional practice, as well as the modality of applying, lifting and contesting the disciplinary professional sanctions are regulated by the Statute of the College.”
12. The relevant provisions of the Law No. 64-XII of 31 May 1990 on Government (M.O., 1990, No. 131-133, art.1018) are as follows:
Article 3
Main Directions of the Government Activity
“According to its powers, the Government shall: […]
9) conduct the state’s policy in the area of public health protection; […]”
13. The relevant provisions of the Law No. 264-XVI of 27 October 2005 on the Exercise of Medical Profession (M.O., 2005, No. 172-175, art.839) are as follows:
Article 15
Modality to defend the doctor’s rights
“(1) The right to exercise the medical profession is protected by the state.
(2) For the purpose of defending his/her professional and citizen’s rights, the doctor is entitled:
a) to call upon the national and international law enforcement bodies according to the legislation in force;
b) to request for settlement by the administrative disputed claims office of a litigation generated by an administrative act, or by the failure to solve within the legal terms of a request regarding the recognition of a right enshrined in the law, in which the other part is a public authority or an official of this authority, according to the legislation in force;
c) to have the prejudice repaired, the one caused by health injury in relation to the specific professional activity under conditions of permanent risk for health and life;
d) to request support from nongovernmental organizations so as to protect professional rights and interests;
e) to be guaranteed moral, economic and professional independence, and social protection;
f) to be supported by the employer at the stage of examining within the court of litigations in case of performing activities according to the regulations in force;
g) to use without restrictions any transportation means from the state’s account for emergency exercise of professional obligations, depending on concrete situations;
h) to get associated in trade-union organizations, public associations which will participate in defending and promoting the rights and professional interests of the doctor;
i) to call upon the League of Physicians of the Republic of Moldova, which defends the professional interests of the doctor, participates in assessing the exercise of the medical function, and in supporting the prestige of this profession in the society.
(3) The doctor is entitled to protection against intervention of some persons and authorities of public administration when exercising his/her profession, and exception being the cases of incompetence and professional mistake.”
Article 16
Associations of Doctors
“(1) For protecting their rights and interests, doctors are entitled to get associated, based on voluntary principles, according to the legislation on non-commercial organizations, in local, central and international professional associations, based on individual or collective membership, and to register them in the established way.
(2) The doctors’ associations specified in para. (1) may provide professional and material assistance to doctors within this association and their family members.
(3) The central and international doctors’ associations may have regional structures.
(4) To protect doctors’ rights and interests and to facilitate the creation of jobs, doctor’s associations will collaborate with central and local public administration authorities.”
14. The relevant provisions of the Law on Health Protection No. 411- XIII of 28 March 1995 (M.O., 1995, No. 34, art. 373) are as follows:
Article 8
Authorization of exercising medical-sanitary and pharmaceutical professions
„[…]
(3) The exercise of the medical-sanitary professions is supervised by the Ministry of Health.
[…]”
Article 9
Modality of authorizing the exercise of the medical-sanitary and pharmaceutical professions
„[…]
(5) Diplomas, credentials or certificates obtained abroad may be equated by the Ministry of Health with the ones from the country for the exercise of the medical- sanitary and pharmaceutical professions, if the international treaties and agreements to which the Republic of Moldova is a part do not provide otherwise.”
Article 10
Improving professional knowledge
„[…]
(5) The modality to attest the medical-sanitary and pharmaceutical workers is set by the Ministry of Health.”
Article 14
General professional obligations and liability for their violation
„[…]
(3) The medical-sanitary and pharmaceutical workers are held liable for professional incompetence and violation of professional duties, according to the legislation in force.”
IN LAW
15. The Court notes from the content of the complaint that it refers mainly to the status, as well as the competences of the College of Physicians of the Republic of Moldova in the area of monitoring and supervising the exercise of medical profession.
16. Hence, the complaint refers to elements of constitutional value, such as the competences of the specialized central bodies and the limits of the professional bodies’ interference, as well as the clarity and predictability of the competences attributed to the College of Physicians.
A. ADMISSIBILITY
17. According to its Decision of 25 March 2014 (see §3), the Court notes that based on art. 135 para. (1) let. a) of the Constitution, art. 4 para. (1) let.
a) of the Law on Constitutional Court and art. 4 para. (1) let. a) of the Constitutional Jurisdiction Code, the Constitutional Court is competent to examine the complaint.
18. Articles 25 let. g) of the Law on Constitutional Court and 38 para. (1) let. g) of the Constitutional Jurisdiction Code empower the Member of Parliament with the right to lodge complaint with the Constitutional Court.
19. The Court notes that according to the constitutional norms, the prerogative of the Court is to establish the correlation between the legislative norms and the text of the Constitution, taking into account the principle of Constitution supremacy.
20. The Court notes that the object of constitutional review is the art. 2, 3, 4, 6, 7, 9, 20, 21 and 22 of the Law No. 261 of 1 November 2013 on College of Physicians of the Republic of Moldova.
21. The Court notes that the contested provisions have never been subject to constitutional review.
22. Thus, the Court states that the complaint cannot be rejected as inadmissible and there is no other reason to end the proceeding, in line with the provisions of art. 60 of the Constitutional Jurisdiction Code.
23. At the same time, based on the content of the complaint the Court notes that it refers mainly to the: 1) status of the College; 2) competences of the College in the area of health, professional training and development of doctors; 3) competence of the College to apply disciplinary sanctions to doctors, which determines the examination of the law in general.
24. The Court notes that the authors of the complaint have invoked the alleged violation of articles 1 para. (3), 16, 20, 72 para. (3), 96, 107, 114 of the Constitution.
25. The Court mentions that a legal provision may represent the object of constitutional jurisdiction only in case an indissoluble content link is found between the provisions tackled under the unconstitutionality aspect and the norms of the Supreme Law.
26. Hence, the Court mentions that the test of the complaint does not cover the pertinent arguments which would justify the claimed violation of articles 1 para. (3) and 16 of the Constitution.
27. In relation to the claimed violation of art. 72 para. (3) of the Constitution, by attributing the law to the category of organic and not ordinary laws, the Court mentions that the authors of the complaint referred generally to the constitutional provisions which list the areas regulated by organic laws, with no arguments which would prove the category of the law. At the same time, the Court mentions that the respective listing is not exhaustive, as the let. r) of para. (3) of art.72 of the Constitution sets that organic laws shall govern also “other fields where the Parliament recommends the passing of organic laws”.
28. Thus, analyzing the object of the complaint in relation to the constitutional norms, to elucidate the issues tackled in the complaint, the Constitutional Court shall operate with the provisions of art. 96 para. (1) and 107, as well as the provisions of art. 114 and art. 20 combined with art. 23 of the Constitution.
B. THE MERITS
I. THE CLAIMED VIOLATION OF ARTICLES 96 PARA. (1) AND 107 OF THE CONSTITUTION
29. In the opinion of the complaint’s authors, the contested provisions violate art. 96 para. (1) of the Constitution, according to which:
“(1) The Government ensures the carrying out of the state internal and external policy and shall exercise the general management of the public administration.”
30. As well, the authors of the complaint support that also art. 107 of the Constitution is violated, which sets:
“(1) Specialized central bodies of the State are ministries. They shall bring into practice, according to the law, the policy of the Government, its decisions and orders, as well as lead the entrusted fields of activity and are responsible for their activities.
(2) In order to lead, coordinate and exercise the control the national economy, as well as other fields, which do not directly fall within the competence of the ministries, other administrative authorities shall be set up, according to the law.”
1. Arguments of the complaint’s authors
31. In the opinion of the complaint’s authors, the College represents a public association and its empowering with the competences mentioned in the law represents an interference with the Government’s competences, in general, and those of the Ministry of Health, in particular.
32. According to the complaint’s authors, the competences of the College are not appropriate for a public association, but to some bodies which are part of the central public administration system.
2.Arguments of authorities
33. Although according to the final conclusions from the written opinion of the President of the Republic of Moldova, the contested norms are constitutional, the whole range of arguments supports the unconstitutionality of the law.
34. Hence, in the opinion presented by the President of the Republic of Moldova, it is mentioned that some of the competences of the College, provided by the Law No. 261 of 1 November 2013, exceed the specific competence frame of a professional organization.
35. Moreover, these competences double the competences of the Ministry of Health, a conflict of competence appears between the central specialized body, which has the obligation to develop and promote policies in the area of health, and a professional organization, which according to its status (independent, representative body), should ensure the observance by doctors of the rules of ethics and professional deontology in relation to patients and public health, as well as an authority meant to defend dignity, promoting the rights and the interests of its members.
36. In case when the legislator, by establishing the institution, intended to delegate the competence of state control over the medial activity, this will be impossible to be fulfilled, based on the principle of free association of the all the medical professionals from the country, established in the law.
The membership of the College of Physicians will make this institution non- functional, and the bodies of the College will be lacking efficient tools to combat the cases of violation of legal norms by the doctors, who will not be members of the College.
37. Thus, the President of the Republic of Moldova mentioned in the submitted opinion that taking into account that the rules of the law set vaguely the status of the College, this leads to the impossibility to identify the goal for which this entity was created.
38. According to the written opinion of the Parliament, the College of Physicians of the Republic of Moldova represents a professional organization of the medical professionals in the country, having as a main goal the activity related to monitoring and supervising the exercise of the medical profession, preserving the prestige of the profession in the social life in line with the legislation.
The rules for becoming member of the College are identical for all the persons exercising the medical profession and the membership may be obtained based on the free expression of consent, not admitting any discrimination for a certain group of persons.
39. As well, the competences of the College of Physicians set by law do not double the competences of the Ministry of Health, observing the provisions of art. 107 of the Constitution. As the competences of the College in the area of health protection, according to art. 3 of the Law No. 261 of 1 November 2013, have consultative nature and refer to the expressing its position regarding the draft public policies initiated in the area.
40. According to the written opinion of the Government, the College of Physicians was endowed with certain competences, set by law, in the area of health, professional training and development of doctors, for the purpose of its participation in the process of developing, analyzing, monitoring, and evaluation of public policies developed by the Ministry of Health.
41. At the same time, the Government mentioned in its opinion that the provisions of the Law No. 261 of 1 November 2013 meet the criteria of clarity, predictability and accessibility, are compliant with the constitutional provisions and existing legal frame, regulate an area of health protection related to human factor of medical profession and are meant to contribute to improving the quality of the medical act, increasing the professionalism of medical professionals, respecting professional ethics and medical deontology.
3. Finding of the Court
1. General Principles
- Competences of central public bodies
42. Based on art. 96 para. (1) the Constitution empowers the Government with the competence to exercise the general management of the public administration. As a public authority of general material competence, the Government has executive duties in all the branches and in all the areas of administrative activity. The provisions covered in art. 96 para. (1) of the Constitution are detailed in the Law No. 64-XII on Government.
43. Hence, in the light of the provisions of art. 96 of the Constitution, according to which the Government ensures the carrying out of the state internal policy, the Court mentions that art. 3 of the Law on Government indicates among the main directions of the government activity – promotion of state policy in the area of population health protection.
44. The leadership, coordination and exercise of control in the areas attributed to the Government by the Supreme Law is performed by the central specialized public bodies.
45. Article 107 of the Constitution provides that the specialized central bodies of the State are ministries. They have the duty to bring into practice the policy of the Government, its decisions and orders, as well as to lead the entrusted fields of activity and are responsible for their activities.
46. Hence, the responsibility for enforcing the Government policy belongs to the ministries, as specialized central bodies. Through the ministries, the Government executes its activity programs and exercises public administration on the entire territory of the country.
47. In line with the provisions of art. 107 of the Constitution, the Ministry of Health is the specialized central body which enforces, based on legal provisions, the policy of the Government in the health area.
- Status of professional bodies
48. The Court notes that based on the law, professional organizations may be established, being endowed with the competences of the State, which cannot be equated with public associations.
49. In this respect, the European Court also has stated that the: “Belgian Physicians’ Order is an institution of public law domain. It is not established by persons, but by the legislative power; it is integrated in the state structures […]. It pursues a goal from the public interest area, respectively health protection, by exercising on legal basis of a form of public control over medicine practice. In the context of the last function, the Order has, first of all, to keep the records about practicing doctors.
To fulfill the tasks attributed by the Belgian State, the Order is legally vested with administrative prerogatives, as well as legislative and disciplinary prerogatives which are beyond the area of ordinary legislation and in this capacity, it uses the procedures of a public authority” (case Le Compte, Van Leuven and De Meyere vs Belgium, Decision of 23 June 1981, § 64).
50. In other words, according to the European Court, the professional body of doctors (Doctors’ Order) is a real administrative body, which exercises competences recognized for any public authority.
51. As well, in the case Association of Spanish Lawyers vs Spain (Decision of 2 July 1990), the European Court considered that the professional bodies are of public law domain, being vested with missions of general interest, and are not institutions in the aspect of the right to association.
52. In the context of above-mentioned, the Court holds that the professional orders are organizations which include on binding basis members of certain professions, which due to the powers provided by law, intervene in regulating and controlling access to the profession and its exercise, combining public and private activities in organization of professions.
The legal nature of the professional orders is that of public service, the professional order having the task to meet a public legitimate interest of organization of profession and of professional discipline. Professional orders are professional bodies which have prerogatives of public power, without being public establishments.
2. Application of principles in the present case
53. The Court holds that the right to health protection is a fundamental right, assurance of people’s health is a national priority and an essential objective of the health system, the aim of which to fulfill a high level of health and to guarantee qualified medical assistance.
54. According to article 36 para. (1) and para. (3) of the Constitution, the right to health care is guaranteed, and the structure of the national system of health care and the means for protection of person’s mental and physical health are set through an organic law.
55. The Court underlines that according to the constitutional provisions, the setting of state policies in the area of health protection and determining the criteria of organization and operation of health protection system represents a prerogative of the legislator.
56. The Court holds that on 1 November 2013, the Parliament adopted the Law No 261 on the College of Physicians of the Republic of Moldova, its aim being the monitoring and supervision of exercise of the medical profession, maintaining the prestige of the profession in the social life in line with the legislation, promoting the principles for doctors to respect the obligations related to patients and public health.
57. The Court notes that according to art. 1 of the law, the College of Physicians of the Republic of Moldova represents a professional organization of medical professionals of the country, of public law domain, without patrimonial aims and has the status of legal entity.
The Court reiterates that the State may establish professional organizations, to which it can delegate certain competences from the area of public administration, including in the area of exercising the medical profession.
58. In this context, the Court cannot maintain the allegations of the complaint’s authors, who equate the status of professional organizations legally established in certain areas with that of public organizations which operate in specific segments.
59. The professional bodies legally established cannot be considered to be associations in the meaning of the right to association, as the legislator has endowed them with status of professional organization, attributing to them prerogatives of public interest.
60. The European Commission has admitted that in general, the freedom of association implies the freedom not to get associated or not to join an association, except for the associations of public law domain. Therefore, the professional orders, which are established as public-law institutions, regulated by law and pursuing goals of general interest, do not represent an association in the meaning of art. 11 of the Convention (Case X vs Holland, Decision of the European Commission of 1 March 1983).
61. The legal personality is granted to them by law. A professional order reunites all the members of a profession, the joining of the order is compulsory, and every order includes on binding basis all the persons empowered to exercise the profession. The professional order does not result from a free association.
62. The way of establishing the public associations, their registration and activity is regulated by the Law No. 837-XIII of 17 May 1996 on Public Associations. At the same time, the establishment of a professional body of doctors cannot be considered to be a restriction of the doctors’ right to get associated into non-commercial organizations established according to the requirements listed in the Law No. 837-XIII of 17 May 1996.
63. The Court mentions that the legislation in force respects the freedom of association for the representatives of the medical profession and contains regulations based on which, to protect their rights and interests, the doctors are entitled to get associated, based on voluntary principles, according to the legislation on non-commercial organizations, in local, central and international professional associations, based on individual or collective membership, and to register them in the established way (art. 16 of the Law No. 264-XVI of 27 October 2005 on the Exercise of Medical Profession).
64. At the same time, as art. 1 of the law assigns the College the status of “professional body”, according art. 6, the College membership is obtained by lodging an application, based on doctor’s free consent.
65. The Court mentions that the rule in art. 6 of the law, which sets forth that obtaining the College membership based on free consent, contravenes in essence the concept of “professional body established by law”, in which the membership is obtained legally by the effect of the Law.
66. At the same time, analyzing the provisions of the contested law, the Court notes that, although the membership is not binding, the College extends legally some of the competences over all the doctors and the medical system in general.
Thus, it has the competence:
- to participate in the activity of groups of experts for assessing and accrediting medical - sanitary institutions [art. 3 point 2)];
- to participate, via its representatives, in recruitment commissions for filling in vacancies in the public medical- sanitary institutions [art. 3 point 3)];
- to assess the doctors’ level of professional qualification [art. 4 point 2) letter a)];
- to equate the documents of medical and pharmaceutical post-graduate education obtained abroad [art. 4 point 1) let. b)];
- to endorse establishment of medical offices and clinics, regardless of the type of ownership and legal organization form [art. 4 point 3) let. c)];
- to apply disciplinary professional sanctions to its members [art. 4 point 4) let. b)] etc.
67. In this situation, the Court accepts the allegations of the complaint’s authors, according to which, based on the way of obtaining the membership, which is voluntary, the College may be equated with a public association, while in relation to the competences – it is vested with duties which refer exclusively to the competence of the state, duties which may be delegated by law to a professional body with status of public institution, under the conditions not to substitute or double the competences of the Ministry of Health, specialized central body, which promotes the policy in the health area, in line with art. 107 of the Constitution.
68. The Court notes that the contested norms interlink elements of a professional body with those of a voluntary association, hence establishing an ambiguous legal status for the College of Physicians. Hence, although, on one hand, the law mentions that joining of the College is based on voluntary principles, on the other hand, it grants the College decision- making competences for all the medical professionals.
69. As well, the Court notes that according to the Law No. 261 dated 1 November 2013, the College of Physicians is attributed more competences in areas similar to those of the Ministry of Health.
70. Thus, the Law on Health Protection No. 411-XIII of 28 March 1995 provides the competences of the Ministry of Health [supervision of the exercise of the medical-sanitary professions, art. 8 para. (3); equating the diplomas, credentials or certificates obtained in health area, art. 9 para. (5)], competences which area detailed in the Regulation on organization and operation of the Ministry of Health, structure and limit number of employees in its central apparatus, approved via the Government Decision No. 397 of 31 May 2011. At the same time, the College of Physicians is also vested with these competences.
71. Examining the legal provisions in general, the Court notes that some of the competences of the College of Physicians duplicate the duties, even exclusive ones, of the Ministry of Health, which is the central specialized body that promotes health policy.
72. The Court notes that the establishment by law of such organizations, with competences in the health area, should be carried out concomitantly with the modification of the entire legal frame in the area. Only through a legal, unique and concomitant approach, a clear delimitation may be ensured for the competences exercised by the Ministry of Health, on one hand, and the professional body, on the other hand.
73. Hence, in the light of the above-mentioned, the Court mentions that the status attributed by law to the College of Physicians correlated with its duties and the competences of the specialized central public administration authority prejudices article 107 of the Constitution.
II. CLAIMED VIOLATION OF ARTICLE 114 AND ARTICLE 20 COMBINED WITH ARTICLE 23 OF THE CONSTITUTION
74. According to the complaint’s authors, the contested norms regarding the disciplinary liability are contrary to article 114 of the Constitution, according to which:
“Justice shall be administered in the name of the law only by courts of law.”
75. As well, the complaint’s authors note that article 20 of the Constitution is also violated, which provides that:
“(1) Any individual is entitled to effective satisfaction from the part of competent courts of law against actions infringing upon his/her legitimate rights, freedoms and interests.
(2) No law may restrict the access to justice.”
76. Additionally, the contested norms have to be examined as well in the light of article 23 para. (2) of the Constitution, according to which:
“[…]
(2) The State shall ensure the right of every individual to be aware of his/her rights and duties. For this purpose the State shall publish and make accessible all the laws and other normative acts.”
1. Arguments of authors
77. According to the complaint’s authors, the establishment by the legislative body of the competence of the College of Physicians of “professional jurisdiction and litigations”, as well as application of disciplinary sanctions by the College to its members represents an interference in the activity of the judicial power.
78. As well, the complaint’s authors mentioned that the members of the College are denied the right to effective appeal against the applied professional sanctions, a fact that contradicts article 20 of the Constitution.
2. Arguments of authorities
79. The Parliament, according to its written opinion, considers that the application of disciplinary sanctions to the members of the College, in line with the provisions art. 21 of the Law No. 261 of 1 November 2013, cannot equate with “administration of justice in the name of the law”, as it is stated in art. 114 of the Constitution.
Moreover, the College members are entitled to contest in the court, observing the prior procedure set in art. 23 of the Law No. 261 of 1 November 2013, disciplinary sanctions which were applied to them. Respectively, the application of disciplinary sanctions to the College members cannot be considered as interference in justice administration.
80. In its written opinion, the Government mentions that the provisions of the Law No. 261 of 1 November 2013, which regulates the disciplinary professional liability of the College members, do not contravene to art. 114 of the Constitution, as the College of Physicians has the competence to examine the reclamations and claims related to non-observance of professional deontology, to conclude the disciplinary enquiry casefile, to support the disciplinary action, and not to judge in the constitutional meaning of the notion, the jurisdictional activity exercised by the College being of administrative and not judicial nature.
81. At the same time, the Government mentioned that in the light of articles 20 and 114 of the Constitution, the law does not prohibit free access to justice of the persons trialed by this extra-judiciary “court”.
3. Finding of the Court
General Principles
82. The Court notes that according to articles 114 and 115 of the Constitution, justice is administrated in the name of the law only by courts, and namely the Supreme Court of Justice, courts of appeal and courts of law.
83. The Court mentions that the courts trial all the cases regarding the civil, administrative, contravention, and criminal legal relations, as well as any other cases for which the law does not provide any other competence.
84. In its Judgement No. 21 dated 23 June 1997 on interpretation of art. 114 of the Constitution of the Republic of Moldova, the Court pronounced itself on the notions of “justice” and “judicial power”, mentioning that the decisions of the bodies which have no competence of judicial power, taken in relation to the cases which stem from administrative relations, do not represent administration of justice.
85. Thus, the Court notes that application of the disciplinary sanction does not represent the competence of the court, the application of disciplinary sanctions represents the competence of the employer/disciplinary body, which has disciplinary prerogatives, having the competence to individualize the disciplinary sanction applicable in relation to the seriousness of the disciplinary deviation, taking into account the circumstances in which the act was committed, the level of guilt, and the consequences of the disciplinary deviation.
86. The disciplinary sanctions represent constraint means provided by law for the purpose of protecting the disciplinary order, developing the spirit of responsibility for conscientious fulfilment of service duties, observance of behavior rules and prevention of indiscipline acts’ occurrence.
87. The Court notes that the settlement of the disciplinary cases by the non-judiciary bodies, with the use by the legislator of the term “professional jurisdiction” as their competence, does not represent a violation of article 114 of the Constitution.
88. At the same time, the Court notes that art. 20 of the Constitution guarantees to any individual the right to effective satisfaction from the part of competent courts of law against actions infringing upon his/her legitimate rights, freedoms, and interest. No law may impede access to justice.
89. By generalizing its formulation, art. 20 allows access to justice for defending any right or freedom, and any legitimate interest, regardless of the fact if it results from the Constitution or other laws.
90. Thus, any interested individual is entitled to approach a court of law, in the way established by law, so as to defend his/her violated or contested rights, freedoms, and legitimate interests.
91. In this respect, the Court mentions that according to the existing legal frame, the act of applying a disciplinary sanction is not excluded from judiciary control. Upon the complaint lodged by the interest party, the court of law shall pronounce itself regarding the legality of the applied sanction.
92. At the same time, the European Court mentioned that the regime of disciplinary action is varied and does not involve systemically the rights of civil character, in the meaning of the European Convention.
The case-law of the European Court, in general, does not link the disciplinary action to the scope of art. 6, only by reference to the decisive nature of the decision being susceptible to have it on the professional exercise. In the case Philis vs Greece (Decision of 12 October 1994), the European Court mentioned that a disciplinary case related to […] the right to continue practicing a profession, gives an opportunity to contest the rights of civil nature.
Application of principles in the present case
93. In the context of the examined case, the Court notes that the legislator provides the College of Physicians the competence to apply disciplinary sanctions to its members for violation of professional activities.
94. The court holds that for the purpose of ensuring the professional ethics, the doctors may be disciplinary sanctioned, and the competence to sanction disciplinary may be attributed to a professional body, whose composition and competence should be regulated by law, to exclude any arbitrary actions.
95. The Court mentions that taking into account of the repercussions of the sanctions applied in relation of the professional activity of the doctor, the legislator has to establish provisions which would ensure the carrying out of fair disciplinary procedures, ensuring all the guarantees.
96. The European Court in its case-law (case Le Compte, Van Leuven and De Meyere vs Belgium) mentioned that if the sanctions may have consequences on the exercise of the profession, the exercise which is considered to be a right of private nature, it can be taken only when the guarantees of a fair trial were respected.
97. Analyzing the contested provisions regarding the disciplinary sanctioning, the Court notes that they do not cover exhaustive regulations regarding: 1) the facts for which the doctor has to be sanctioned; 2) the legal subject entitled to notify the disciplinary body; 3) the maximum period within which the disciplinary sanction may be applied; 4) the composition of the disciplinary college; 5) the modality for defending the person subject to the disciplinary procedure.
98. Moreover, the Court establishes contradictions among regulations as well. In line with art. 20 para. (2) of the law, the disciplinary sanction is applied by the territorial council and may be contested in the National Council, while art. 22 sets forth that the professional disciplinary sanction is applied by the National Council and is contested in the council of litigations.
99. Thus, the Court mentions that the modality of regulation by the legislator of the professional liability of doctors does not correspond to the exigencies which would ensure the carrying out of a fair disciplinary proceeding.
100. At the same time, the Court notes that although the College membership is obtained as a result of free consent, the College applies disciplinary sanctions for its members not only for the activity within the College (e.g. withdrawal of membership), but also for the exercise of the doctor profession by applying the following sanctions: downgrading from function for a period of up to one year; obligation to perform a professional training; suspension of the qualification category during the period of repeated post-graduate training or withdrawal of the qualification category in case of non-confirmation of the level of qualification in the attestation commission.
101. The Court underlines that since the College membership is not mandatory, which will operate legally by the effect of the law, disciplinary sanctions related to the exercise of profession cannot be applied, as they cannot be applied by the organizations established on voluntary principles.
102. As well, it should be mentioned that the work of the medical staff is regulated by the labor legislation, by concluding the individual labor contract with the employer (private or public medical-sanitary institution). Taking into account the rule according to which the one who employs/appoints in a certain position is also entitled to dismiss/remove from office, offer incentives or sanction, it is necessary to have a clear delimitation of the competences between the employer and professional body, especially, in relation to imputing disciplinary liability to the doctor.
103. The Court underlines that in disciplinary field, is incident theprinciple of sanction’s legality.
104. In its Judgment No. 8 of 20 May 2013, the Court mentioned that the legality, as the main principle of the rule of law state, implies the compliance of the legal rule or act with the superior rules, which set forth the conditions of procedure on enacting legal norms. The legal conduct refers to the Parliament’s legislative activity, as well as to establishing the internal rules for organization and operation, which are directly related to the lawmaking process.
105. At the same time, the Court mentions that art. 23 para. (2) of the Constitution obliges the State to make accessible all the laws and normative acts. Although article 23 of the Constitution covers expressly only the criterion of accessibility and clarity of the law, the Court, via its case-law, notes that the norms adopted by the public authorities should be sufficiently precise and predictable.
106. The Court holds that according to the case-law of the European Court: “A norm is accessible and predictable only when it is edited with sufficient accuracy, so as to allow any person to correct his/her behavior and to be able, with adequate counselling, to foresee, in a reasonable measure, the consequences which may appear from a norm. […] the law should be accessible in an adequate way: the citizen should have an adequate indication, in concrete circumstances, over the applicable legal regulations […]” (case Silver vs United Kingdom, Decision of 25 March 1983).
107. At the same time, in its case-law, the European Court stated: “[…] when the State adopts a solution, it should be enforced with clarity and coherency in order to avoid as much as possible legal insecurity and uncertainty for the legal matters subject to the measures for applying this solution [...]” (case Păduraru vs Romania, Decision of 1 December 2005).
108. The Court mentions that any normative act must observe the constitutional principles and norms, as well as the exigencies of legislative technique, meant to ensure the clarity, predictability, and accessibility of the act. The law should regulate in unitary way, ensure logical-juridical link between the provisions it contains, and in case of legal institutions with a complex structure, to provide for elements which distinguish their peculiarities.
109. The Court holds that through regulations of legislative techniques, the legislator has imposed a series of binding criteria for adopting any normative act, the observance of which is necessary for ensuring the systematization, unification and coordination of legislation, as well as the content and the legal adequate form of every normative act. Hence, the observance of these norms contributes to ensuring a legislation which respects the principle of security of legal relations, having the necessary clarity and predictability.
110. The Court underlines that according to their content, the articles regulating disciplinary liability of doctors do not comply with the exigencies of clarity, accessibility, and predictability, a fact contrary to article 23 of the Constitution.
111. Based on the above-mentioned, the Court concludes that the identified deficiencies affect articles 23 and 107 of the Constitution and prejudices the functionality of the whole law integrally.
Based on articles 140 of the Constitution, 26 of the Law on Constitutional Court, 6, 60, 61, 62 let. a) and 68 of the Constitutional Jurisdiction Code, the Constitutional Court
DECIDES:
1. To admit the complaint of the Members in Parliament, Mr. Artur Reșetnicov and Mr. Igor Vremea.
2. To declare unconstitutional the Law No. 261 of 1 November 2013 on the College of Physicians of the Republic of Moldova.
3. The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Gazette of the Republic of Moldova.
President Alexandru TĂNASE
Chisinau, 15 May 2015
JCC No. 13
Casefile No. 16a/2014