Decision 25/2018 on establishing the conflict with the Fundamental Law of a provision of the law and on annulling it
28 December 2018
Decision number: Decision 25/2018. (XII. 28.)
Subject of the case:
Judicial initiative against Section 77 (2) of the Act LXXXIII of 1997 on the Benefits of Compulsory Social Security (decision made in the scope of equity, appeal)
The Constitutional Court established that Section 77 para. (2) of Act LXXXIII of 1997 on the Benefits of Compulsory Social Security was unconstitutional and, therefore, annulled it. Section 77 para. (2) of Act LXXXIII of 1997 on the Benefits of Compulsory Social Security shall not be applicable in the cases No. 11.K.27.109/2018 before the Szombathely Administrative and Labour Court and No. 2.K.27.519/2018 before the Debrecen Administrative and Labour Court as well as in any other case pending. In the case underlying the judicial initiative the plaintiff had submitted to the Price Subsidy Department of the National Health Insurance Fund an application for support based on equity concerning the price of a medicine not available under social security support, and the plaintiff’s application was rejected. The plaintiff brought an action against the defendant by arguing that it was the only chance for him to stay alive. The judge initiating the judicial initiative referred, among others, to the following: the right to legal remedy would require that a possibility to turn to another organ or to a higher forum of the same organ should be offered for the purpose of reviewing all decisions that substantially influence the right or the lawful interest of the affected person. As argued by the petitioning judge, the challenged provision of the law “provided a rather narrow” scope of right to appeal, indeed, in the case of persons who do not have the financial means to buy the medicine – unavailable under social security support –indispensable for their treatment. The Constitutional Court found the judicial initiative to be well-founded. The peculiar character of the administrative decisions based on exercising equity may justify in such cases a regulation that excludes the possibility of the judicial review of the administrative decision, however, it should not necessary mean the exclusion of the possibility of a substantial review. In the present case, a formalized legal remedy cannot be justified with this peculiar character due to the real risk of breaches of the law, taking into account in particular the exhaustive listing of the conditions of receiving support to the price of medicine based on equity, and also taking into account the need for the complex examination of eventually complicated questions of medical and economic nature. On the basis of the foregoing, the Constitutional Court established that the challenged regulation unnecessarily restricted the right to legal remedy and the right to a fair procedure at court.