Decision of Center mun. Chisinau Court issued on February 26, 2016
Decision of Center mun. Chisinau Court issued on February 26, 2016
On November 18 2013 ms.I submitted a civil complain against the Ministry of Health of the Republic of Moldova and to Orhei regional hospital with a demand to repeal the Order num.100 of April 1st 2004 of the Ministry of Health of the Republic of Moldova(hereinafter - the Order), which restricts the access of pregnant women to medical facilities.
She mentioned that on May 21st 2013 she felt idiosyncratic pains, that preceded the birth. After that she appealed to the hospital at her place of residence. But because she was HIV-positive, she was refused in hospitalization. She was sent to give birth to the Scientific Research Institute for the Protection of Mother and Child Health in Chisinau mun. According to to the Appendix num.2 of the issued Order, the delivery of HIV-positive women can be taken just in two medical institutions, to where they are sent by the regional medical institutions. She also was refused to use transport services.
The Court found that provisions on equality and the prohibition of discrimination are provided at the international level:by the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 14);by The Universal Declaration of Human Rights (Article 2); by The International Covenant on Civil and Political Rights (Article 14), as well as at the national level by the Constitution of the Republic of Moldova(Article. 16).
According to the Act num. 121 from May 25th 2012 on equality, which creates the legal framework necessary for the application of the Council of the European Union 2000/43 / CE of 29 June 2000 on ensuring the principle of equality between people regardless of race or ethnicity origin, and Directive 2000/78 / CE of the Council of the European Union from November 27th 2000 on the establishment of a common legal framework for ensuring equality of treatment in the field of employment and labour. In the sense of the above-mentioned law, discrimination is defined as "any distinction, exclusion, restriction or preference in the rights and freedoms of an individual or a group of persons, as well as support for discriminatory behavior based on real signs established in this law or alleged" (Article 2). "Any form of discrimination is prohibited. Promoting a policy or carrying out actions or omissions that violate the equality of the rights of individuals must be eliminated by the competent public authorities and punished in accordance with the law. " (Article 6)
According to the Law num. 23 from 16.02.2007 on the Prevention of HIV / AIDS: "Any person, regardless of HIV status, has equal access to medical services. It is not allowed to refuse hospitalization, admission, access to medical services for people with HIV-positive status in public, departmental and private health and sanatorium-resort establishments, as well as requiring them to pay additional fees for the provision of relevant services "(Article 25) .
According to the Law num. 411 from March 28th 2005 on "Health protection": "Citizens of the Republic of Moldova have the right for a free choice of a doctor, health care institutions and forms of medical care" (Article 25)
According to the Law num. 263 from 25.10.2005 "On the rights and responsibilities of the patient": "When receiving medical services, the patient has the right to choose the most reliable methods of ensuring health in the field of reproduction. Any patient has the right for effective and risk-free methods of family planning. The patient has the right for information, education and services necessary for the development of sexual and reproductive health without any discrimination "(Article 9)
The Court also has referred to the Decision of the Constitutional Court of the Republic of Moldova num. 28 from December 14th, 2004, where it was stated: "According to the law, the right for the health protection, which is one of the basic human rights, is ensured, among other things, by guaranteed qualified medical care" , as well as the definition from the Constitutional Court num. 14 from October 8th, 2013, which explained that the list of grounds for discrimination can be supplemented, since it has an indicative, but not restrictive character.
In addition to this, the Court referred to the practice of the ECHR: the case of Schalk & Kopf v. Austria (judgment of 24.06.2010), (§ 96) and Burden v. The United Kingdom (judgment of 29.04.2008), (§ 60), and Afacerea J.B. v. Greece (judgment of 03.10. 2013), when the ECHR found: "In order to raise a question of the application of the Art. 14 of the Convention, it is necessary to highlight a difference in treatment of persons in comparable situations. Such a distinction is discriminatory in the absence of an objective and reasonable justification, if it does not pursue a legitimate aim or if there is no a reasonable relationship between the means used and the pursued goal" and pointed a violation of the Art. 14 in conjunction with the Art. 8 of the Convention for discrimination against HIV-positive persons.
Therefore, the Court pointef that by the clause 2 of the Order the Classification of territorial administrative units for birth-giving centers for HIV-infected women (Appendix No. 2) was approved, according to obstetric help can be provided to HIV-positive women only in 2 medical institutions in the country, where pregnant women must be sent by all local medical institutions. Provisions which are mentioned above restrict the access of HIV-positive pregnant women to medical services, establishing discriminatory treatment.
According to the answer num. 01-1 / 1446 of the Ministry of Health on October 16th, 2013, "the provisions of the Order brought out legal effects, and after the adoption of the Law num. 23 from February 16th, 2007 on HIV / AIDS prevention, the ban is no longer applied, i.e. it has lost its force, but the Court finds that it continues to perform(unreasonably) by some medical personnel.
By the Decision of the Council on Prevention and Elimination Discrimination and Ensuring Equality on December 27th, 2013 in the case num. 021/2013 of the complaint "R.T" against the local hospital "Z" and the Ministry of Health of the Republic of Moldova on the issue of discrimination based on HIV in access to medical services, that Order num. 100 is considered as discriminatory against pregnant women who are HIV-positive.
Considering the foregoing, the Court overturned the paragraph 2 of the Ministerial Order num. 100 from April 1st 2004 on the “Prevention of Mother-to-Child Transmission of HIV and the Organization of Appropriate Prevention”, which established the Classification of Territorial Administrative Units for the Delivery Centers for HIV- infected women (Appendix num. 2), as well as the Appendix num. 2 to the above Order.
Станислав Ежи Лец