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CONCLUSION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of February 20, 2004 No. Z-170/2004

About compliance of the Constitution of the Republic of Belarus and to the Law of the Republic of Belarus "About health care" regulations on licensing of medical activities and the regulations on licensing of pharmaceutical activities approved by the resolution of Council of Ministers of the Republic of Belarus of October 20, 2003 No. 1378

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Vasilevich G. A., vice-chairman Maryskin A. V., Vorobey G. A. judges., Podgrusha V. V., Sarkisovoy E.A., Tikovenko A. G., Filipchik R. I., G.B. Cone, Shuklina V. Z.

with participation of representatives:

The Houses of Representatives of National assembly of the Republic of Belarus - Lektorov V. N., the chairman of the Permanent commission of the House of Representatives of National assembly of the Republic of Belarus on health protection, physical culture, cases of family and youth; Meshkova N. N. managing department of state law of the Main expert legal department of the Secretariat of the House of Representatives of National assembly of the Republic of Belarus;

Council of Ministers of the Republic of Belarus - Romanenkova A. S., deputy minister of health care of the Republic of Belarus

Took part in judicial session:

Vyshkevich V. N. is the vice-chairman of the Supreme Court of the Republic of Belarus; Kozyreva L. G. - vice-chairman of Supreme Economic Court of the Republic of Belarus; Kalugin V. Yu. - deputy minister of justice of the Republic of Belarus.

Proceeedings are initiated by the Constitutional Court on December 8, 2003 according to the offer of the House of Representatives of National assembly of the Republic of Belarus based on article 116 of the Constitution, articles 5 and 6 of the Law "About the Constitutional Court of the Republic of Belarus" and Article 43 of Regulations of the Constitutional Court.

The House of Representatives of National assembly of the Republic of Belarus made the offer on check of the Regulations on licensing of medical activities and the Regulations on licensing of pharmaceutical activities approved by the resolution of Council of Ministers of the Republic of Belarus of October 20, 2003 No. 1378 (The national register of legal acts of the Republic of Belarus, 2003, No. 122, 5/13295) providing procedure and conditions of issue of special permissions (licenses) for implementation according to medical and pharmaceutical activities.

According to the House of Representatives, established in the specified provisions additional (in comparison with the Law "About Health Care") requirements to level of training of medical personnel will entail closing of many organizations of health care, especially primary link where the small number of health workers works with the corresponding categories. The House of Representatives considers that it fully belongs also to the pharmaceutical organizations.

According to article 2 of the Constitution of people, its rights, freedoms and guarantees of their realization are the supreme value and the purpose of society and state.

The right to health protection is guaranteed to citizens of the Republic of Belarus. The state creates conditions of medical attendance, available to all citizens (Article 45 of the Fundamental Law).

Owing to requirements of article 13 of the Constitution the state performs regulation of economic activity for the benefit of the person and society, provides the direction and coordination of the state and private economic activity in the social purposes. The state grants all the equal rights for implementation of economic and other activity, except prohibited by the law, guarantees equal protection and equal conditions for development of all patterns of ownership.

According to article 9 of the Law "About Health Care" the health care system of the Republic of Belarus is constituted by the state health care and private health care. At the same time, as it is specified in the Law, basis of health care system of the Republic of Belarus is the state health care.

Article 12 of the Law "About Health Care" provides that medical and pharmaceutical activities in the territory of the Republic of Belarus are performed by physical persons and legal entities only in the presence of special permission (license).

The license represents special permission to the implementation of type of activity in case of obligatory observance of licensed requirements and conditions issued by the licensing body to the license applicant or the licensee confirmatory that the subject of managing assumes liabilities on ensuring proper implementation of the licensed type of activity.

According to the Constitutional Court, rule-making bodies, adopting acts within the competence, including regulating the medical and pharmaceutical activities having the right to determine procedure and conditions of its implementation, to set restrictions which shall correspond to the criteria set by the Constitution of the Republic of Belarus namely be based on the law and be accepted only for the benefit of homeland security, public order, protection of morality, health of the population, the rights and freedoms of other persons.

State regulation in the field of implementation of medical and pharmaceutical activities is caused by need to provide protection of life and health of citizens. For this purpose regulatory legal acts establish increased requirements to the subjects performing such activities including obligation of licensing of the specified activities is fixed.

Item 5 of the specified Regulations on licensing of separate types of activity provides that the Council of Ministers of the Republic of Belarus within the competence approves regulations on licensing of types of activity which along with other conditions and requirements shall include the list of the licensed requirements and conditions shown to legal entities and individual entrepreneurs and also features of issue of licenses for separate type of activity.

The decree No. 17 was considered by the House of Representatives and Council of the Republic of National assembly of the Republic of Belarus respectively on October 9 and 17, 2003 and is taken into consideration without notes.

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