Right to health and health care of the Roma from the ...romasosprilep.org/wp-content/publications/analizi/Analiza_Angliska.pdf · care of the Roma from the practice of ... Right to

Law in practice:

Analysis of the challenges in the legal

protection of the right to health and health

care of the Roma from the practice of

ROMA S.O.S.

Prilep, 2014

Right to health and health care of the Roma from the practice of ROMA S.O.S.

2

Authors: Nesime Salioska - ROMA S.O.S.

Tanje Trenkoska - ROMA S.O.S. Publisher: Roma Organization for Multiclultural Affirmation - ROMA S.O.S. About the publisher: Nesime Salioska, executive director Reviewers:

MA Biljana Kotevska

Lawyer Blagoj Dimovski Proofreading in Macedonian language: Gordana Aceska

Translated into English by: Keti Efremoska

Printed by: Acetoni, Prilep

Circulation: 300 copies Supported by the Foundations Open Society

CIP - Каталогизација во публикација

Национална и универзитетска библиотека "Св. Климент Охридски", Скопје 364-787(=214.58:497.7)

342.72/.73:364-787(=214.58:497..7) САЛИОСКА, Несиме

Анализа на предизвиците за правната заштита на правото на здравје и

здравствената заштита на Ромите од практиката на РОМА С.О.С. : правото во

практиката / [автори Несиме Салиоска, Тање Тренкоска ;

превод на англиски јазик Кети Ефремоска]. - Прилеп : Ромска

организација за мултикултурна афирмација - РОМА С.О.С., 2014. - 62, 60 стр. :

илустр. ; 21 см Насл. стр. на припечатениот текст: Analysis of the challenges in the legal protection of

the right to health and health care of the Roma from the practice of ROMA S.O.S. : law

to practice / Nesime Salioska, Tanje Tren koska. - Обата текста меѓусебно печатени во

спротивни насоки. - Текст на мак. и англ. јазик. - Фусноти кон текстот ISBN 978-608-65425-1-1

1. Тренкоска, Тање [автор]. - I. Salioska, Nesime види

Салиоска, Несиме. - II. Trenkoska, Tanje види Тренкоска, Тање

а) Роми во Македонија - Здравствена заштита б) Роми во Македонија -

Правна заштита

COBISS.MK-ID 96669194


3

PREFACE

There is still not enough information about how human

rights are applied in the health care, especially for protection against

discrimination in the realization of the right to health of the

marginalized groups in the Republic of Macedonia.

Although there are a number of international and national

standards for protection of the right to health, however, so far in the

administrative, civil and criminal proceedings in the national

legislation, the number of initiated proceedings for violation of the

rights of health care is very small, while in the case of Roma

community there is no such case.

Systematic monitoring and recording of the legal practice

can be a significant source of knowledge, and in this context ROMA

S.O.S., starting from 2010 initiated civil protection of the right to

health and the rights associated with it, through implementation of

the project "Roma Health - Basic Human Right". The project is

based on the application of the legislation to overcome the obstacles

that Roma face and thus require fair implementation and

confirmation and of the "right to health for all without

discrimination".

The project is financially supported by the Foundation Open

Society Macedonia, through the Law and Health Initiative (LAHI) -

New York and the Roma Health Project - Budapest.

This analysis, which covers the period from the beginning of

the implementation of the project until its finalization in February

2014, was done in hope that it will give new arguments for

protection, promotion and enhancement of the right to health and the

principle of equality. We hope that received observations will serve

as base for the legal changes to applied policies, and changes in the

practice of the courts and national institutions for human rights as

well.


4

CONTENT

PREFACE........................................................................................... 3

1. INTRODUCTION .......................................................................... 7

1.1. Context ...................................................................................... 7

1.2. Civil protection of the right to health ........................................ 9

1.3. Legal aid and participation in decision-making ...................... 10

1.4. Purpose of the analysis ............................................................ 14

1.5. Methodology ........................................................................... 15

2. LEGAL FRAMEWORK .............................................................. 16

2.1. International law ..................................................................... 16

2.2. National law ............................................................................ 22

3. LEGAL PRACTICE ..................................................................... 26

3.1. CASE A.S. FROM PRILEP: .................................................. 27

3.1.1. Facts about the case ....................................................... 29

3.1.2. Procedures for protection of the rights .......................... 29

3.1.3. Explanation of the criminal procedure ........................... 30

3.1.4. Explanation of the civil proceeding for compensation ... 36

3.2. CASE S.B. FROM BITOLA: ................................................. 40



3.2.3. Explanation of the criminal procedure ........................... 44

3.2.4. Explanation of the grounds for initiation of a civil action

for compensation ...................................................................... 47

3.3. CASE S.F. FROM DELCEVO: .............................................. 49



3.3.3. Explanation of the civil proceeding for compensation ... 51

3.4. CASE A.J. FROM BITOLA: .................................................. 53



3.4.3. Explanation of quasi-judicial protection ........................ 56


5

3.4.4. Explanation of the grounds for initiating a civil action for

compensation ............................................................................ 59

3.5. Promotion of the cases in the media ....................................... 60

4. ANALYSIS OF THE APPLICATION OF THE LAW IN

PRACTICE ....................................................................................... 61

4.1. Availability in the context of the right to compensation ......... 62

4.2. Accessibility and acceptability in the context of the right to

information and the right to equal treatment ................................ 63

4.3. Quality in the context of the right to conscientious

treatment ....................................................................................... 66

5. ACCESS TO JUSTICE ................................................................ 68

6. CONSLUSIONS AND OBSERVATIONS IN ORDER TO

ENHANCE THE PROTECTION OF THE RIGHT TO HEALTH 70

6.1. Conclusions ............................................................................. 70

6.2. Observations ........................................................................... 72


6

Abbreviations

CPHRFF Convention for the Protection of Human

Rights and Fundamental Freedoms

ECHR European Court of Human Rights

HCL Health Care Law

LPPR Law on the Protection of Patients' Rights

LPPD Law on Prevention and Protection from

Discrimination

CEDAW Committee on the Elimination of

Discrimination against Women

CESCR Committee on Economic, Social and

Cultural Rights (UN)

CC Criminal Code

CPAD Commission for Protection against

Discrimination

ICESCR International Covenant on Economic, Social

and Cultural Rights

Ombudsman Ombudsman of the Republic of Macedonia

UN Organization of the United Nations

Special rapporteur Special Rapporteur on the right to health

(UN)

Constitution

SSHI

WHO

Constitution of the Republic of Macedonia

(1991 and its amendments)

State sanitary and health inspectorate

World Health Organization


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1. INTRODUCTION

1.1. Context

Health is a constitutionally guaranteed right of every citizen

of the Republic of Macedonia, who has right and obligation to take

care of and improve their own as well as the health of others. Health,

among other things, is basic need of every individual and one of the

key conditions for successful functioning of the family and the

society.

However, findings from the existing literature and conducted

researches indicate that the health situation of the Roma1 in

comparison to the major ethnic groups is significantly worse and this

situation is closely related to the fact that they are most prevalent in

the group of citizens who live in poverty as well as widespread

stereotypes and prejudices.

Health statistics in Macedonia are not analyzed by ethnicity

and competent medical facilities do not have adequate data on the

health status of the Roma. Currently researches and work of civil

organizations are the only source of data on the current situation in

Roma communities in terms of their health.

1 According to the last Census of population, households and dwellings in

the Republic. Macedonia since 2002 in the country (State Statistical Office

of the Republic of Macedonia, Census of population, households and

dwellings in the Republic of Macedonia, 2002, Book XIII) live 53.879

members of the Roma community, which represents 2.66% of the total

population. However, according to other studies, which are based on

researches by NGOs, the real number of Roma population is greater i.e. in

Macedonia live approximately 80.000- 135.000 Roma. Basic features of the

situation of the Roma are: high rate of poverty, unemployment,

marginalization and poor neighborhoods, substandard infrastructure, low

health status, low level of education, lack of personal documentation,

inadequate living conditions.


8

Many Roma are unable to choose a personal doctor

independently, and percentage of those who suffer from chronic

diseases is very high and they are not able to provide necessary

medicines. They state that they face poor explanations about their

health, are not able to cover the cost of health services and in certain

cases they are not satisfied with the attitude of health personnel.

Great number of Roma women do not have registered gynecologist,

they face charging of free gynecological services, they visit a

gynecologist only in situations when their reproductive health is

aggravated and do not use contraception which results with a

frequent occurrence of abortions.2 Serious obstacles to realization of

rights is the lack of identification documents, existence of persons

without nationality and unregistered civil status, while immunization

of Roma children is below the national average. There were also

cases of keeping personal documents in health care facilities when

Roma were unable to pay for the service.

In order to improve the situation of the Roma since 2005

series of initiatives have been launched and more strategic

documents and policies have been adopted both at international and

national level. In the Republic of Macedonia particularly important

are the National Action Plans for implementation of the Decade of

Roma Inclusion3 and Strategy for the Roma, through which health is

treated as a priority area for action.

Nevertheless, the competent authorities have ignored the

health of Roma for a long time i.e. they do not pay enough attention,

given the complexity of the centralized system of health authorities

2 Results of the conducted research by the association ROMA S.O.S. Prilep

"Meet your gynecologist", September 2012 3 Decade of Roma Inclusion started in 1995 as a pan-European initiative of

the countries of Southeast Europe and aims to improve the socio-economic

status and social inclusion of the Roma. This program is committed to

improving the welfare of Roma in four priority areas: housing, employment,

education and health, and in terms of three cross- sectoral issues: poverty,

gender equality and non-discrimination. The Decade is implemented in 9

countries with significant number of Roma population: Bulgaria, Croatia,

Czech Republic, Hungary, Macedonia, Montenegro, Romania, Serbia and

Slovakia.


9

in the Republic of Macedonia and the characteristics of living of the

Roma community due to which they face unequal and inappropriate

access to health rights and health services, while their health shows

continuous worsening rather than improving.

Among the identified reasons that contribute to this situation,

the most evident are: frequent amendments to the legislation, their

incomplete or poor implementation, uneven practice in implementing

legislation, inadequate and untimely informing of the Roma about

the procedures for exercising their rights, lack of health insurance,

introducing complex administrative procedures which impose

additional obligations for realization of the rights and discriminatory

treatment by health workers in the access to health services.

On the other hand, the lack of law practice and poor judicial

precedents in the protection of the right to health and rights of health

care, causes distrust among Roma in the legal protection and the

judicial system itself, because of which in a situation of violation of

the rights they give up using this kind of protection. Another aspect

to not seeking liability or institutional care are also personal

circumstances and characteristics of the Roma population: lack of

support, financial insecurity and lack of knowledge of legal

protection mechanisms.

1.2. Civil protection of the right to health

In order to provide equal enjoyment of rights to health care

for the Roma population, in 2010 a Legal department was established

and for its function were engaged attorneys, experts from various

fields, legal practitioners and Roma activists. Moreover, based on the

needs, different actions have been undertaken in order to promote the

health and legal education in the Roma communities, free legal

assistance is being offered during the procedures, violations of the

rights are documented and publicly actualized, litigations are

initiated and application of legal mechanisms is being followed or in

other words - the health condition of the Roma community is being

treated from the legal point of view.


10

Specifically, in this manner Roma are being strengthened

and encouraged to understand the procedures, to recognize violations

and to use protective mechanisms, while advocating in front of

competent institutions and health facilities, despite filing requests,

appeals, interventions and complaints, it is also aimed at identifying

the basis for initiating litigations that require accountability from the

perpetrators of violations for compensation for suffered physical or

moral, psychological harm or suffering caused by treatment or other

service in the health system.

At the same time a positive practice is being created for

other organizations (which have same or similar purposes) in

advocacy, and court practice is being created regarding the judgment

of the national courts for determination of medical errors as basis for

criminalization. Simultaneously, systemic barriers in the procedures

for exercising the rights are being monitored and identified and

consequently civil reactions are being initiated in front of the

decision makers.

1.3. Legal aid and participation in decision-making

Planning of the process of advocacy and legal aid, covers

views and evaluations associated with documenting the violation of

the rights, establishing the basis for protection of significant

circumstances and facts relevant to the cases that are structured in a

separate document that is used as a tool during the advocacy.

Methodology for collecting, processing and analyzing data

and documenting cases of violation of the rights of health care and

unequal treatment in the access to health institutions is prepared as a

framework for human rights at the Legal department, according to

which, the staff undertakes steps in the work and strategic advocacy.

Thus, the following steps have the most important role:

detected problems/obstacles are reported to the Legal

department by the Roma community, health institutions or

by the field assistants that simultaneously educate Roma

community about their rights to health care,


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the case is being analyzed and the required documentation is

being collected by the lawyer in collaboration with the client

in order to document the case,

regular consultation with the client is being conducted and

the client is being informed about barriers and violations of

his/her rights, and in particular about the actions that need to

be taken in order to resolve the problem,

the client is being offered logistical support in the cases in

which barriers have been identified in the access to health

services or administrative procedures,

legal actions have been undertaken in front of the competent

authorities according to their competence to resolve the case

(Ombudsman, State Sanitary and Health Inspectorate

(SSHI), Commission for Protection against Discrimination,

inspection authorities) and/or a lawyer is hired and court

proceeding is initiated,

individual monitoring is being implemented in each case and

separately for the undertaken legal actions, in constant

consultation with the client and interested parties.

What is particularly important in the process of advocacy is received

support in the form of expert opinions in the field of human rights

and legal practitioners relating to the particular case.

This expertise is made possible through cooperation with the

Office of the Ombudsman and hired lawyers who lead the advocacy

of identified cases. Thus, the collaboration represents a unique aspect

of advocacy and contributes to establishment of foundations for

protection and undertaking legal actions, in accordance with the

protective mechanisms and responsibilities of the parties involved.


12

In the process of advocacy, work with media has a crucial

role as well as getting media space and public support. This method

enables promotion and actualization of injuries and obstacles in the

access to effective and efficient justice, "public pressure" is being

achieved on the competent authorities to solve the cases, and on the

other hand, on the health workers themselves, in order to improve

their treatment of Roma patients.

This kind of advocacy includes lobbying among policy makers,

ministries and all interested parties, in order to provide support and

sensitizing of the challenges that Roma face in access to exercise

their rights of health care.

The main emphasis through this methodology, is on strategic

advocacy (litigation) of identified cases of violations of the rights of

health care.

Through strategic advocacy, legal system of the country is used

(particularly judicial) to create a legal case (precedent), whose

solution will cause positive changes in the health system.


13

Why litigation?

Litigation is a powerful tool for human rights. It can be used

as a means of raising public awareness and education, increased

critical public monitoring of the Government operations and decision

makers, but also of transnational entities, and enabling marginalized

communities4 to realize their rights, base them on legal arguments

and arguments of applied policies, etc. However, selection of the

litigation as means has its own challenges and certain risks as well.

Some of them are as follows: independence of the judiciary;

courts can only judge whether something is in accordance with the

law or not, without going into a lot of other (potentially hidden and

not very obvious) aspects; duration and costs related to litigation;

etc.5 This suggests that litigation can be best used as a tool if it is

used in combination with other tools, for example, if it is part of a

larger strategy of advocacy, effort for building cases for the objective

law, strengthening of the ruling of the law, testing of the existing

law, strengthening of the marginalized groups, etc.6

This particularly refers to a system where there is weak legal

protection of the right to health care, lack of court practice for this

kind of violations, and fines in the small number of initiated

litigations do not correspond with the violations, which makes the

impact of medical profession over the judiciary even more evident.

4 Litigation is particularly important for marginalized groups because they

are usually out of major decision-making processes, and because of that

courts become the only place where they can express their demands.

Source: Yamin, Alicia Ely and Siri Gloppen (eds), 'Litigating Health Rights

- Can Courts Brings More Justice to Health?', Harvard University Press

(2011) 5 Yamin, Alicia Ely and Siri Gloppen (eds), ‘Litigating Health Rights – Can

Courts Brings More Justice to Health?’, Harvard University Press (2011) 6 Ibid.


14

1.4. Purpose of the analysis

The purpose of this analysis is to outline the current

situation, identified obstacles and challenges that Roma are facing in

the realization and protection of the right to health and the rights

associated with it, through the experiences gained in the processes of

litigation for the four cases in which legal basis for initiating

litigation was identified.

This analysis is intended to help in identifying and dealing

with violations of the rights of health care and unequal treatment of

Roma in their access to health services i.e. practice that was created

in advocating health rights of the Roma to be a positive example for

interested parties in initiating legal actions on identified violations of

the rights.


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1.5. Methodology

Methodology for this analysis is qualitative. Methods for

collecting data were review of existing literature7 and litigation.

8

Main methods of data analysis were qualitative text analysis and

comparative method. Approach for writing the results were driven by

the purpose of the analysis, limiting the number of pages and the

time of its preparation. The limitations of the methodology for

preparation of the analysis are as follows: part of the cases that were

selected for analysis are still in litigation; conclusions can be derived

from the cases on the legal practice in the first two levels of legal

protection (Basic and Appeal court); sample of cases from which the

cases were selected consists only of the practice of ROMA S.O.S.,

from which general conclusions about the experiences of other

organizations that provide legal assistance in the same area cannot be

drawn.

Main sources used to prepare this analysis were: legal and

sublegal acts of national law, legally-binding international law

relevant to Macedonia and authoritative interpretations and court

practices as part of this law as well as the legal documentation for the

four selected cases.

7 The selection of the available literature was made by sources that process:

right to health and rights associated with it; principle of equality and

protection from discrimination (with focus on the literature that deals with:

the area of health and health care and the principle of equality and non-

discrimination); international law relevant to Macedonia and the

international legal practice that deals with cases where the nature of the

violation of the right matches the one of the four selected cases; law of the

European regional system). 8 Starting from December 2010 to December 2013, ROMA S.O.S. in the

framework of the project "Roma Health - Basic Human Right" has

documented 1.653 cases of given free legal aid and logistical support of the

Roma population in exercising the right to health care. In 4 of these cases

violation of the right to health and health care has been identified and

actions of litigation have been undertaken. These four cases are part of this

analysis in the part of litigation.


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2. LEGAL FRAMEWORK

This section gives an overview of the relevant standards on

the right to health and health care in the international and national

law. In addition, standards related to the principle of equality and

protection from discrimination are being reviewed as the ultimate

principle in the international human rights. This review provides the

framework through which we then analyze the legal practice and

deduct conclusions i.e. realizing the need for harmonization of the

national with international law.

2.1. International law

The right to health is part of the rights established by the

international human rights law.9 It was subject of authoritative

interpretations of these documents10

and the practice of institutions

for human rights.11

Fundamental rights that arise and are directly

9 ICESCR Article 12, CERD Article 5 (1-a), CEDAW Article 10-12 and 14,

CRC Article 24. Regional instruments: European Social Charter Art. 3, 7,

11 and 13, Additional protocol to the American Convention on Human

Rights in the area of Economic, Social and Cultural Rights (Protocol of San

Salvador) Article 7 and 10, the African Charter on Human and Peoples'

Rights Article 16 and 18, Constitution of the WHO 10

General comment no. 14 on CESCR (2000) which should be read in

conjunction with the General comment no. 3, General recommendation no.

24 of CEDAW (1999). Another important document is the Resolution of the

Commission on Human Rights 2002/31 which provides legal basis for the

mandate of the UN Special Rapporteur on the Right to Health. 11

Some of the most important cases on the right to health are: Alyne da

Silva v Brasil (CEDAW, Communication No.17/20008); Minister for

Health at al v. Treatment Action Campaign et al (Constitutional Court of

South Africa, Case CCT 8/02, 2002); Soobramoney v. Minister of Health

(KwaZulu Natal) (Constitutional Court of South Africa, Case CCT 32/97,

1997); Cortez et al v. El Salvador, Admissibility decision, Inter-American

Commission on Human Rights, Case 12.249, 2001; as well as D v. UK

(ECtHR App.30240/96, 1997) that is related to the health status as a source

of violation of the law defined in Article 3, and the cases id ECHR related

to the health status as basis for discrimination Kiyutin v Russia, I.B. v

Greece, GN v ITaly, S.H. and Others v Austria.


17

related to the right to health are: the right to health and health care

and the right of exercising social determinants that affect health.12

Basic principle and obligation of the state regarding these rights, as

well as in general for human rights, is the principle of equality and

protection from discrimination.

The most important document for an authoritative

interpretation of the right to health is General Comment no. 14. In it,

the Committee on Economic, Social and Cultural Rights has

interpreted the content of Article 12 of the ICESCR, and according to

its first attitude, "states - parties of this covenant, recognize the right

of every person as highest attainable standard of physical and mental

health." In the second attitude of this Article are listed13

illustratively

part of the measures that can be undertaken by the state towards

complete realization of this right.14

According to the General Comment no. 14, the content of the

right to health consists of four interrelated core elements:

availability, accessibility (non-discrimination, physical accessibility,

economic accessibility, access to information), acceptability and

quality.15

Therefore, fulfilling the state's obligations regarding this

right, should be implemented through these elements.

To be considered available, functional public health and

health care facilities, goods and services as well as programs should

be available in sufficient number. It refers to the social determinants

of health (such as safe and healthy drinking water and adequate

12

General comment no. 14 of CESCR. 13

General comment no. 14 of para.2 14

The second paragraph of Article 12 states: “The measures that will be

undertaken by the states - parties of the present Covenant in order to

provide full realization of this right, should include measures necessary for:

a) reduction in the rate of stillbirths and mortality of the newborns, as well

as healthy development of the children; b) improvement of all aspects of

environmental and industrial hygiene; c) prevention, treatment and control

of epidemic, endemic, occupational and other diseases; d) creating

conditions for providing medical assistance in case of illness." Source:

Article 12, ICESCR 15

General comment no. 14 of para.12


18

sanitation, ambulant, hospital and other health facilities, trained

medical and professional personnel that receives competitive income

in the national frameworks and essential drugs).16

Accessibility has four components: non-discrimination

(availability and accessibility of health facilities, goods and services

to all without discrimination, especially for vulnerable or

marginalized groups); physical availability and accessibility (health

facilities, goods and services are in safe physical reach, including

rural areas, for the whole population, especially vulnerable or

marginalized groups and persons with disabilities); economic

affordability (these facilities, goods and services must be available

for everyone); and access to information (the right to seek, receive

and announce information and ideas concerning health issues).17

Acceptability means that all health facilities, goods and

services will be in accordance with medical ethics and will be

culturally sensitive. They also need to be designed in a way that will

enable respect for the confidentiality and improvement of the health

of those who are affected.18

Quality involves scientific and medical appropriateness of

health facilities, goods and services, which, among other things,

include skilled medical personnel, scientifically approved drugs

without expired date and hospital equipment, safe and healthy water

and adequate sanitation.19

State obligations regarding the right to health, as with all

economic, social and cultural rights, are subject to progressive

realization within the maximum available resources of the state and

with prohibition for violation of the principle of retrograde

tendencies. The only exception is the progressive realization and

protection from discrimination, which takes effect immediately and

is considered as the primary obligation (eng. Core obligation).

16

Ibid. 17

Ibid. 18

Ibid. 19

Ibid.


19

The principle of equality and non-discrimination is a

fundamental principle in the international human rights law. It is

part of all key documents on human rights,20

and subject to

authoritative interpretations of human rights.21

There is considerable

relevant legal practice,22

which refers to discrimination based on

health status, ethnicity, race,23

sex and gender, age - as grounds for

discrimination relevant for this analysis, as well as discrimination in

the area of health care, social protection and access to justice - also

relevant for this analysis.24

In addition, very important for this analysis is to highlight

that disabling or disrupting exercising of health and women's

reproductive rights is also considered as discrimination. The state has

20

UDHR (Article 2(1)), ICCPR (Article 2, 3, 26), ICESCR (Article 2(2),

3(3)), CRC (Art. 2(1)), CRMW (Art. 1(1)), ECHR (Article 14, para.7,

Article 5, para. 12, art. 1(1)), ESC (rev.) (Article.E), CFREU (Article 21

and all chapter III - Equality). Besides these, ICERD, CEDAW and CRPD

are documents that are considered instruments against discrimination, which

means that all their provisions are important. 21

General comment no.18 CHP, General comment no.20 CESCR, all

recommendations of CEDAW and CERD. 22

An excellent overview of the international legal practice of non-

discrimination is shown in “Non-Discrimination in International Law: A

Handbook for Practitioners“. Fleetwood, Rachel (Ed). Interights Website.

<http://www.interights.org/files/174/Non-

Discrimination%20in%20International%20Law%20A%20Handbook%20fo

r%20Practitioners%202011%20Edition.pdf>. 17.01.2014. and European in

the ‘Handbook on European Non-discrimination Law’. Fundamental Rights

Agency and Council of Europe (2010). 23

About distancing of the theories for existence of races, see: Schiek, D,

and others (Eds.) Non-discrimination Law – Cases Materials and Text on

National, Supranational, and International (Hart Publishing 2007). More on

this, as well as on racism and other related concepts, see: Bulmer, Martin

and John Solomos (Eds.). Racism – Oxford Reader.Oxford: Oxford

University Press, 1999. 24

Some of the cases in front of the ECHR are: S.H. and Others v Austria,

Kiyutin v Russia, I.B. v Greece, GN v Italy. For more detailed treatment of

these cases, see: Kotevska Biljana, Guide for grounds of discrimination

(OSCE and CPAD, 2013), 18


20

a positive obligation to implement structural changes, as well as legal

and institutional measures in order to combat such discrimination.25

This issue has been reviewed by the CEDAW in Alyne da

Silva Pimentel against Brazil. This is the first case of death of a

woman giving birth submitted to CEDAW; it was filed by the mother

of the woman who was giving birth with legal assistance from

NGOs. CEDAW has reviewed this case, though it still was not

completed in front of national courts (up to that point it lasted for

eight years), and because of unreasonable delay of the domestic

proceedings (Article 4, par.1 of the Optional Protocol). This was also

contributed by the delay in appointing medical experts that would

consider the case and delays in trials and sentencing judgments. Lack

of explanations for some of the rejected submissions in domestic

legal proceeding was an additional argument taken into consideration

by CEDAW. According to the Committee, this delay cannot be

attributed neither to complexity of the case nor the number of

defendants.26

CEDAW found that the mother 's death could have been

prevented if the correct diagnosis was established upon the condition

of the mother and if she was given proper treatment. Namely,

according to the committee, not responding to the symptoms reported

by the woman who was giving birth to health facilities, which

indicated possible death of the fetus, delayed and inadequate

transport to the hospital, and delayed and inadequate health

interventions, suggest that treatment was contrary to the obligation of

the state to provide adequate health services during pregnancy. This

is also discrimination because decisive element here is the status of

the woman who was giving birth, which is related to the sex of the

victim, and must be considered in this case.27

25

Kotevska Biljana, Guide for grounds of discrimination, OSCE and

CPAD, 2013, p. 18 26

Alyne da Silva Pimentel Teixeira v Brazil, CEDAW Communication No.

17/2008 (2011), para. 6.2 27

Ibid. 7.3, 7.4


21

Starting from this, CEDAW found a violation of Article 12,

paragraph 2 of the Convention by Brazil, which states: "Despite the

provisions of paragraph 1 of this Article,28

states - members provide

adequate health services during pregnancy, birth and the period after

the birth of the child, by providing free services where necessary, as

well as adequate nutrition during pregnancy and lactation.29

According to this authority, states have an obligation, no matter

whether it is public or private health facility, to guarantee access to

non-discriminatory, adequate and timely health services to all

women during pregnancy and childbirth.30

Macedonia has ratified all major international agreements

which provide observance, protection and promotion of the right to

health and non-discrimination (with exception of the International

Convention on the rights of migrant workers and their families).

According to the Vienna Convention on the Law of Treaties (1969),

in the international law applies the principle pacta sunt servanda,

which means that international agreements are binding for the state

parties of the agreement and they must act in good faith in fulfilling

their contractual obligations.31

Thereby, the state can not invoke

national law as an argument for not meeting international

obligations.32

According to the Constitution of the Republic of

Macedonia, ratified international agreements are considered part of

the domestic legal system. Thus, Macedonia is obliged to respect,

protect and fulfill the rights stipulated in ratified contracts that are

part of international human rights law. The next section examines the

national law which is relevant to this analysis.

28

12, para. 1 states: “States-members undertake appropriate measures to

eliminate discrimination against women in the area of health care in order to

provide, on the basis of equality of men and women, access to health care

services, including those related to family planning” 29

Aricle 12, para.2, CEDAW. 30


17/2008 (2011) 31

Vienna Convention on the Law of Treaties, UN (1969), Art.26 32

Ibid. Art.27


22

2.2. National law

In the national law, the right to health is determined in the

highest legal act of the state - the Constitution, in Article 39, under

which: "every citizen is guaranteed the right to health care. Citizens

have the right and duty to protect and improve their own health and

the health of others." Article 8 is important as well, and according to

it, part of the fundamental values of the constitutional order of the

state are the basic rights and freedom of the man and citizen, that are

recognized in the international law and in the Constitution,

humanism, social justice and solidarity, and respecting generally

accepted norms of the international law (Article 8, paragraph 1,

subparagraph 1, 8, 11). Also important are Article 98, according to

which "courts judge on the basis of the Constitution and international

treaties ratified in accordance with the Constitution," and Article

118, according to which "international agreements ratified in

accordance with the Constitution of internal legal order and can not

be changed by the law."

The Constitution establishes the principle of equality in

Article 9, which states: "Citizens of the Republic of Macedonia are

equal in rights and freedom regardless of the sex, race, color,

national or social origin, political or religious beliefs; wealth and

social position. All citizens are equal before the Constitution and

law." Furthermore, important is Article 54, according to which " The

restriction of freedoms and rights cannot discriminate on grounds of

sex, race, colour of skin, language, religion, national or social origin,

property or social status."

Right to health and health care is provided by the law. Main

legal texts of direct relevance to this analysis are the Law in Health

Care (LHC), Law on Protection of Patients' Rights (LPPR) and the

Criminal Code (CC).

The Law in Health Care governs, among the other things, the

right to health care (Article 3, LHC). Therefore, everyone is entitled

to health care and duty to take care, protect and improve their health

and nobody can endanger the health of others. Health care is based

on the unity of preventive, diagnostic and therapeutic rehabilitation

measures, and principles of affordability, efficiency, continuity,


23

fairness, inclusiveness and providing quality and reliable medical

treatment (Article 5, LHC). In addition, importance for the analysis

and articles relating to the autopsy, which since 2012 in LHC is

elaborated in Chapter XII - Review of death and autopsy.33

According to the Law on Protection of Patients' Rights

(LPPR), protection of the patients' rights34

is based on the principles

of humanity and availability (Art. 3, par.1 LPPR). Patients have their

rights in this or any other law or by ratified international agreement

(Art. 5, par. 1 LPPR), and patients are entitled to exercise their rights

without discrimination (Art. 5, par. 2., LPPR).

LPPR provides for the following rights: the right to care,

treatment and rehabilitation (which are in accordance to the

individual needs and abilities and which enhance health status, in

order to achieve the highest possible level of personal health,

according to the available methods and possibilities of the medicine,

and in accordance with the provisions of health care and health

insurance) (Article 5, paragraph 3., LPPR), right to respect and

dignity of the person (Art. 5, par. 4, LPPR), right to personal security

during his/her stay in health facility (Art. 5, par. 5 LPPR), right to

participate in decision-making (includes the right to information and

the right of acceptance or rejection of a particular medical

intervention) (Art. 6-16, LPPR), access to medical records (Art. 22-

24, LPPR).35

33

Same material in the old health care law was elaborated in Chapter XV. 34

to this law ‘Patient’ is a person, sick or healthy, who will request or will

undergo a particular medical intervention in order to protect and promote

his/her health, prevent diseases and other health conditions, treatment or

medical care and rehabilitation" (Article .4/1-1, LPPR). 35

Other rights of patients that are not directly relevant to this analysis, but

are provided with LPPR are: mandatory consent for performing scientific

research (Article 17, LPPR), protection of the rights when involving in

medical education (Article 18-20 , LPPR), rules and rights associated with

the actions of the human genome (Article 21, LPPR), right to confidentiality

(Article 25, LPPR), right to maintain contact (Article 26, LPPR), right to

leave the health facility voluntarily (Article 27, LPPR) and right to privacy

(Article 28, LPPR).


24

The Criminal Code also includes acts against health of

people, which are determined in a separate chapter.36

More serious

qualifications of these acts are established in Article 217,37

which

regulates serious acts against health of people, as acts where serious

body injury or health disorders or death of one or more persons

occurred because of criminal act. Here, beside Article 217, we could

also distinguish crimes such as unconscientious treatment of sick

people (Art. 207) and not giving medical aid (Art. 208), as the most

relevant for this analysis.

Equality and non-discrimination, in addition to the

provisions of the Constitution mentioned above, are provided in a

number of laws. Main legislation is the Law on prevention and

protection from discrimination, according to which direct, indirect,

multiple, repeated, prolonged discrimination, discrimination in the

provision of goods and services, discrimination against persons with

a disability, victimization and harassment is prohibited (Art.6 -12,

LPPD). This applies, among others, in "social security, including the

area of social security, pension and disability insurance, health

insurance and health care" (Art. 4, para.1, subparagraph.3, LPPD). In

terms of protected grounds i.e. grounds for discrimination, this law

36

This chapter provides the following parts: transmitting infectious disease

(Article 205), not acting according health regulations during epidemic

(Article 206), unconscientious treatment of sick people (Article 207), not

giving medical aid (Article 208), nostrums (Article 209), illegal

transplantation of parts of human body (Article 210), unconscientious

performance of pharmaceutical activities (Article 211), production and sale

of harmful medicines (Article 212), production and sale of harmful food and

other products (Article 213), unconscientious examination of meat for

eating (Article 214), unauthorized production and distribution of narcotic

drugs, psychotropic substances and precursors (Article 215) and enabling

the use of narcotic drugs (Article 216). 37

This article is related to the works of: transmitting an infectious disease,

unconscientious treatment of sick people, nostrums, unconscientious

performing pharmaceutical activity and production and sale of food and

other harmful products, unconscientious examination of meat for eating,

illegal manufacture and distribution of narcotic drugs, psychotropic

substances and precursors and enabling the use of narcotic drugs.


25

provides an open list, and explicitly lists "sex, race, color, gender,

belonging to a marginalized group, ethnicity, language, nationality,

social origin, religion or religious beliefs, other types of beliefs,

education, political affiliation, personal or social status, mental and

bodily disability, age, family or marital status, property status, health

status or any other basis provided by law or by ratified international

agreement" (Art.3, LPPD).

Despite LPPD, discrimination is also prohibited by specific

provisions in other legislations for the right to health. Thus, Article 9

of the Law on health care, although titled as "Principle of justice"

actually is about the principle of non-discrimination. According to it,

"the principle of justice of health care is being exercised by

prohibiting discrimination in providing health care in terms of race,

gender, age, nationality, social background, religion, political or

other belief, property status, culture, language, kind of illness, mental

or physical disability" (Art.9, HCL). According LPPR, patients are

entitled to exercise their rights "without discrimination based on sex,

race, color, language, religion, political or other belief, national or

social origin, belonging to national minority, property status, birth

origin, sexual orientation or any other status" (Art. 5, paragraph 2.,

LPPR). The Criminal Code stipulates offense violation of equality of

citizens, which punishes the one who "on basis on the difference of

sex, race, color, national or social origin, political and religious

beliefs, property and social status, language or other personal

characteristics or circumstances, revokes or limits persons and

citizen’s rights that are established by the Constitution, law or

ratified international agreement or on the basis of these differences

gives citizens benefits that are contraversial to the Constitution, law

or ratified international agreement " (Art. 137, CC). According to the

above findings, the people who believe that the right to health and

the rights associated with it have been violated or people who seek

protection from discrimination, can use more legal mechanisms,

such as regular courts, inspections and two national human rights

institutions - Ombudsman and the Commission for protection against

discrimination (CPAD).


26

3. LEGAL PRACTICE

The number of violations of the rights of Roma is much

higher than the one that is documented in reality, both in institutions

and in the NGO sector. This is due to the fear of injured parties from

exposure to victimization, mistrust in institutions, but also because of

lack of acknowledgment of violations by themselves and acceptance

of the injury as "normal".

In practice, injured parties who have encountered violation

of their rights most often deny taking an action due to the fear that

they will face again incorrect terms and unequal treatmen by the

health facility after finding out that he/she took measures to protect

of rights. Additionally, injured parties do not believe in the protective

mechanisms and providing adequate treatment and access to health

services if actions are taken by their side.

In individual cases that are documented, as the most evident

violations of the rights of health care are: violation of the right to

conscientious treatment, right of access to information and medical

record, right to appropriate medical services, right to protection of

personal data, right to use medicines and further health care, right to

use services of compulsory health insurance, right to compensation

due to disability, violation of personal rights to physical and mental

health, right to equal treatment in the provision of health services,

violation of the principle of humanity, availability and health care, as

well as violation of right to privacy and dignity.

* * *

In order to consider the application of the law in practice, the

next section provides a factual review of four cases of Roma patients

for whom ROMA S.O.S. has provided legal aid in protecting their

right to health.

Identied violated rights: right to conscientious treatment, right to compensation for suffered disabilities, equal access to health care, access to justice.

Initiated proceedings: criminal procedure, civil procedure, quasi-judicial procedure.

Institutions: Basic Court Prilep, Appeal Court Bitola, Ombudsman.

Outcome: criminal proceeding was effectively completed, civil proceeding was partially completed with the nal judgment, and for a part of the requirements the proceeding is still ongoing.

3.1. CASE A.S. FROM PRILEP:

...from a broken arm to

permanent physical

disabilities


29

3.1.1. Facts about the case

On 10th September 2008, seven-year old A.S. from Prilep

suffered a broken left forearm while playing near the family house.

The child was taken to P.H.I. General Hospital "Borka Taleski" -

Department of Orthopedics and Traumatology, where he underwent

immobilization of the broken arm. Doctor on duty found that there is

no need of surgery, but decided to keep A.S. at the hospital to

monitor his condition. A.S. began to complain of pain in the hand,

after what (next) the doctor on duty concluded that surgery was

needed, so he left A.S. without food and water, preparing him for

surgery if the collective decides, in accordance with the protocols of

the department. That day a decision for surgery was not made, and

the plaster was just cut. After this, changes of the color and swelling

on the arm were noticed, and the plaster was removed, but signs of

gangrene were noticed on the arm. On 14th September, A.S. was

transferred to the P.H.I. Pediatric Surgery Clinic - Skopje, where due

to life-threatening condition, his arm was amputated. Consequently,

A.S. now has a permanent disability.

3.1.2. Procedures for protection of the rights

Because of suspected violation of the right to conscientious

treatment and exercising of the right to compensation for disabilities,

two proceedings were initiated, criminal and civil, in front of the

Basic Court in Prilep. From these two procedures only the criminal

procedure was completed with judgment, while the civil one, for

compensation of faced disability, was completed only partially with a

final court judgment while it is still ongoing for some requirements

for which a compensation should be determined.38

Parallel to these actions and based on regular monitoring of

the whole case, discrimination was noted in the access to health care,

38

The case of A.S. was reported in the office of ROMA S.O.S. by the

parents of A.S. after the occurrence of the injury, when in fact, they asked

for legal help for protection of the rights due to inadequate treatment of A.S.

by the health workers. In order to protect the rights of the injured party and

undertake legal actions in both proceedings, ROMA S.O.S. hired the lawyer

Blagoj Dimovski from the law office"Petlickovski" - Bitola.


30

as well as obstacles in the access to justice (delay of the proceedings

in front of the Basic Court Prilep). Under these suspicions, some

complaints were filed to the Office of the Deputy Ombudsman in

Bitola.

3.1.3. Explanation of the criminal procedure

In October 2008 the criminal proceedings was initiated ex

officio by the public prosecutor against an orthopedic doctor from

the Department of Orthopedics and Traumatology within P.H.I.

General hospital "Borka Taleski" Prilep, and during the procedure

the indictment was expanded against all six doctors from the

department. After three years from the initiation of the proceeding,

indictment was filed against the six doctors, all orthopedic specialists

employed at P.H.I. General Hospital "Borka Taleski" Prilep, because

there was suspicion of a criminal offense "Heavy offenses against

public health" and "Unconscientious treatment of sick people" of the

Criminal Code of the Republic of Macedonia.39

The reason for this

was the duration of the investigation of the three years in which

period evidences and data for justification of the charges were

gathered.

Suspicions that the proceeding tended to be prolonged and

lead to "forgetting" were based on the fact that after the initiation of

the prosecution proposal by the public prosecutor on 18.10.2011 and

the initiation of the criminal proceeding, by the beginning of 2014

39

Unconscientious treatment of sick people Article 207

(1) A doctor who will use inadequate means or manner of treating when

providing medical care or will not to use proper hygiene measures or will

act unconscientiously in general, and by doing so will cause worsening of

the health condition of any person, shall be punished by a fine or

imprisonment up to three years.

(3) If the crime of the items 1 and 2 is committed out of negligence, the

perpetrator shall be punished by fine or imprisonment up to one year.

Article 217

(3) If because of the crime from Article 205 item 3, 207 item 3, 211 item 2,

212 item 2, 213 item 2 and 214 paragraph 2 any person is severely

physically harmed or his/her health is severely damaged, the perpetrator

shall be punished with imprisonment of three months up to three years.


31

there was no final judgment. Fears that the case will be forgotten

were due to the fact that in September 2014 the legal limit for

prosecution of 6 years from the date of the injury will have been

expired.40

Actions undertaken by ROMA S.O.S. in front of the institutions

for protection of the rights

Through regular contact with the local public prosecutor, the

investigating judge and the President of the Basic Court Prilep, the

lawyer and the injured party, investigation and the court proceeding

were being followed and according to the determined irregularities,

actions were submitted to accelerate the proceedings, aiming fair and

timely completion of the case.

A) Ministry of Health

Determined irregularities

For this case, the Ministry of Health formed a special

Commission to establish the facts and circumstances i.e. whether all

measures have been taken by health workers in the treatment of the

patient and whether there were irregularities in the medical care.

However, even after four months of the event, the Commission had

not yet adopted Opinion on the circumstances that influenced the

course of the investigation.

40

The statute of limitations in the case of A.S. expires in September 2014.

After this deadline, no legal action can be undertaken against the

perpetrators of the crime and they will not be criminally prosecuted. In

accordance with the provisions of the Criminal code, the prosecution for the

crime that defendants have been accused for, shall expire after six years

from the date when the crime was committed (see Article 107, paragraph 1,

item 5, and Article 108, paragraph 6 of the Criminal code).


32

Intervention undertaken by ROMA S.O.S.

Due to delays in the preparation of the Commission's

opinion, ROMA S.O.S. appealed and filed a request to the Ministry

of Health to take responsibility and measures for accelerating the

work of the Commission and the adoption of the necessary opinion.

Action undertaken by the institution

Although ROMA S.O.S. did not receive a written response

from the Ministry, the Minister of Health in a media statement cited

part of the findings of the Commission. Namely, he said that the

Commission has found, "[...] there was inadequate treatment by the

doctors [...] untimely surgical treatment of the wound, late notice of

the change of the hand, and late removal of the plaster, [...] [and]

revocation of medical licenses is possible."

B) Office of the deputy Ombudsman – Bitola


After the given order by the investigating judge for

conducting a forensic medical expertise, the case was submitted to

the Forensic Institute in Skopje, in order to identify irregularities in

the treatment. After 13 months from the amputation of the hand,

finding and forensic expert opinion, were not submitted to the Basic

Court in Prilep.


Under suspicion for delaying the investigation and the

forensic medical expertise, which disables access and provision of

legal protection, a complaint has been submitted three times to the

Office of the deputy Ombudsman in Bitola against the Basic Court in

Prilep.


33

Action undertaken by the institution

In terms of the procedure with forensic medical expertise, it

was concluded that the case was sent to the institution that is not

authorized to act i.e. Forensic Institute, so it was transferred to the

Board for a forensic medical experts at the Medical Faculty in

Skopje. Forwarding case demonstrates the unseriousness and

unprofessionalism of the institutions. Also, by submitting the case to

the competent authority for expertise, the finding was not submitted

to the Basic Court Prilep, because the costs for the forensic medical

expertise by the court were not reimbursed.

In relation to the proceeding in front of the Basic Public

Prosecutor and his non pleading about the case, after the act of the

deputy Ombudsman, information about the procedure in front of the

Public Prosecutor was received, who had requested expansion of the

investigation against all doctors from the department, which led to

the delay of all actions.

Achieved changes

After four months of the act of ROMA S.O.S., the cost of the

expertise were paid, and the finding and opinion were delivered to

the Basic Court Prilep.

C) Public Prosecution, Ministry of Justice and president

of the Basic Court Prilep


Indictment by the public prosecutor was submitted to the

Basic Court Prilep on 18.10.2011. As a result of inability to secure

the presence of the experts who were involved in conducting forensic

medical expertise and their hearing, not attending of the defendants

and requested additional expertise to establish new facts and

circumstances, although fifteen hearings have been held, the

judgment has not been made yet.


34


An appeal was submitted to the Public Prosecution Office of

the Republic of Macedonia, the Basic Court Prilep and the Ministry

of Justice under suspicion of violation of the basic principle of the

judicial proceeding for a trial within a reasonable time and possible

obsolescence of the case, as well as possible further delay of the

additional expertise which was requested.

Actions undertaken by the institution

Public Prosecution Office of the Republic of Macedonia - a response

was received which reported that the Public prosecutor in Prilep has

undertaken timely and proper legal actions.

Ministry of Justice - with the response, a statement of the trial judge

was submitted, who gave an explanation that the complexity of the

case, the number of defendants and experts involved were reason for

multiple delays of the hearings, yet actions in accordance with legal

regulations had been undertaken.

Basic Court Prilep - a meeting with the President of the Basic Court

Prilep was scheduled and held, who personally pledged to call the

experts to meet the requirements of the court and to appoint

representatives who will attend the hearing on 29.03.2013.This

meeting was attended by the parents of the injured party who had

previously sent a complaint to the president of the court expressing

their concerns about the conduction of the judicial proceeding.

Achieved changes

The hearing held on March 29th, 2013 was attended by invited

experts and judgment was made. In it, the court pleaded two out of

the six doctors guilty of committing serious crimes against people’s

health, and were given an alternative measure - probation as a

sanction, a fine of 500 euros, which will not be executed if within

one year they do not commit another crime. The other four doctors

were freed of charge.


35

Undertaken actions by the parents of the injured party A.S. in front

of the institutions for protection of the rights

Following the judgment of the Basic Court Prilep on

29.03.2013 an appeal by the Basic public prosecutor to the Appeal

Court in Bitola was submitted.

Intervention undertaken by the parents

On 8th July 2013 parents of A.S. filed complaints to the

Appeal Court in Bitola and Higher Public Prosecutor's Office in

Bitola, demanding the case to be taken as a priority, given that five

months had passed since the adoption of the first instance judgment.


Both institutions have responded positively to the complaints

of the parents.

Higher Public Prosecutor's Office submitted a proposal for

priority in resolving the case to the Appeal Court, and upon the

review of the documents, irregularities and remarks in the work of

the Public Prosecutor’s Office were determined in relation to the

matter for which the Public Prosecutor’s Office of the Republic of

Macedonia and the Council of Prosecutors were informed.

Achieved changes

Appeal Court decided upon the appeal to return the case for retrial

and provide directions for determining disputed facts. During the

retrial, in December 2013, the Basic Court pleaded guilty the doctor

on duty who admitted A.S. and immobilized his arm (who is also

head of the Department of Orthopedics) and he was given an

alternative measure – probation sentence - imprisonment of three

months. The court freed the other five doctors of charge. The court

directed A.S. and his parents to court dispute about compensation.

As with the first instance judgment the other five orthopedic

doctors were freed of charge, the lawyer disputed the decision that

the responsibility for the treatment of the juvenile A.S. was duty only

to the doctor on duty who admitted him since the treatment was


36

performed as a team and the commitment to the health condition of

the patient was of all charged doctors, submitted an appealed to the

Appeal Court in Bitola. Acting upon the appeal, the Appeal Court in

Bitola just confirmed the first instance judgment of the Basic Court

in Prilep, according to which only the doctor on duty who has

admitted A.S. and immobilized his arm is guilty, as well as

confirmed the sentence alternative measure - probation -

imprisonment of three months. Regarding the other five defendant

doctors, the first instance judgment was confirmed and they were

freed of charge since there was no causal connection between their

actions and the occurrence of the harmful consequence - the

occurrence of gas gangrene.

3.1.4. Explanation of the civil proceeding for compensation

Due to the disability suffered by the juvenile A.S. as a result

of inadequate treatment of the orthopedic doctors in P.H.I. General

Hospital "Borka Taleski" - Prilep, in accordance with the Law of

Civil Procedure and the Law on Obligations, two appeals have been

filed on front of the Basic Court in Prilep for compensation of

immaterial damage.

A) Undertaken actions by the injured party

On 05.09.2011 an appeal was filed for compensation due to

suffered disability and violation of personal rights of physical and

mental health, against P.H.I. General Hospital "Borka Taleski"

Prilep, as well as a request for monthly lifetime payment until there

are conditions for it, due to reduced general activity i.e. disruption of

normal functioning and performance of everyday tasks, therefore,

requires constant assistance from his closest family.


Basic Court in Prilep thought that it should not act on the

appeal on the grounds that the appeal did not contain the required

data for further treatment (data for identification of the complainant).


37

On the other hand, requested relief from the procedure costs

(cost for court fees, advanced paying for witnesses and experts, for

insight and court listings) was not approved with an explanation that

the grounds of the appeal is financial claim, that a lawyer who will

advocate their rights has been engaged in the process and there was

no evidence that the complainants are not capable of work.

Intervention undertaken by the lawyer

An appeal to the Appeal Court in Bitola was submitted.


Appeal Court in Bitola found that the Basic Court in Prilep

made a mistake in dismissing the appeal and did not free the

complainants from procedural costs. Namely, the legal basis for the

claim, financial claim for compensation is not a criterium that

determines whether there are circumstances to release the party from

paying court fees i.e. costs of the procedure, but what is important is

the income realized by the party and members of the household

whom he lives with and that based on data that are in the appeal can

be acted on.

Achieved changes

The case is returned again to the Basic Court Prilep for

further processing, and after six hearings, in September 2013 a

judgment which determines the compensation for immaterial damage

in the amount of 5.000.000,00 denars was made, due to violation of

the rights of physically and mental health. The Court has found that

doctors are responsible for the compensation caused by the deviation

of the standards of medical science and ethical principles, that was

result of insufficient attention of the doctors in treatment and treating

the juvenile A.S. The request for payment of lifetime financial

support every month until there are conditions for it, was rejected

with the verdict as unfounded, and the request for reimbursement of

litigation expenses was partly adopted.

The complainants, dissatisfied with the given amount for

immaterial damage and rejection of the request for payment of


38

lifetime financial support, filed an appeal against the first instance

judgment in front of the Appeal Court in Bitola.

Acting on the complaint, the Appeal Court made a judgment

that overturned the first instance judgment regarding the amount

given for immaterial damage and determined an amount of

2.700,000,00 denars in total, and the case was returned to the court of

first instance regarding rejected request for lifetime payment of

financial support and litigation costs.

B) Actions undertaken by the parents of the injured party

On 05.09.2011 an appeal was filed against P.H.I. General

Hospital "Borka Taleski" Prilep for compensation of immaterial

damages for violation of personal rights i.e. suffered mental pain and

due to permanent disability of their child as a result of

unconscientious treatment and amputation of the arm.


The Basic Court considered that the procedure should be

stopped and it should not be acted until the criminal procedure, that

is held in front of the court in Prilep, is complete, thus explaining

that this procedure will determine whether the defendant doctors

were guilty of the crime they are accused for and determine whether

there are grounds to sentence compensation.


An appeal was filed to the Appeal Court Bitola.


Just confirmed the decision of the Basic Court for

termination of the proceeding until final completion of the criminal

proceedings in front of the Basic Court Prilep and determining guilt.

By the adopted decision, the Court explained that

termination can be determined if there is a proceeding initiated in

front of the court to decide the issue of guilt, which precedes the


39

question of compensation. In the present case, criminal proceedings

in front of the Basic Court Prilep has already been started, and in the

civil proceeding, in relation to the existence of the crime and the

criminal responsibility of the perpetrator, is bound to the final

judgment of the court by which the defendant is found guilty.

According to the Appeal Court, the proceeding is being terminated

properly because the outcome of the criminal case will affect the

proceeding initiated on the basis of compensation.

Achieved results

Given that the criminal proceeding ended in December 2013

and it was confirmed that the damage in juvenile A.S. is a result of

medical error, conditions have been created for continuation of the

procedure for determining compensation of immaterial damage to

parents for suffering mental pain by the state in which they have their

child.


40

Identied violated rights: right to conscientious treatment, right to

equal treatment in access to health care, right to information, access to

justice.

Initiated proceedings: criminal procedure, quasi-judicial protection.

Institutions: Basic Court - Bitola, Ofce of the deputy Ombudsman – Bitola.

Outcome: ongoing

3.2. CASE S.B. FROM BITOLA:

...Death of a woman who

was giving birth from

unknown reasons


43


On 19.03.2012 at the Department of Gynecology and

Obstetrics at P.H.I. Clinical Hospital "Dr. Trifun Panovski" in Bitola,

S.V., a 24-year-old Roma woman from Bitola passed away from

unknown reasons, during the delivery by caesarean section, and the

infant survived.41

The mother had previously given birth to three

children without any complications, and during the last pregnancy

she went to regular gynecological examinations to her gynecologist,

and no signs of deteriorating health were determined.

Husband of the deceased and her relatives were not given

detailed information about what exactly had happened during

delivery and what were the reasons for the death. They have been

sent to the Regional office of the Ministry of internal affairs and to

the investigating judge at the Basic Court - Bitola which took over

the case.

In order to determine the causes of death, by order of the

investigating judge in the Basic Court Bitola, an autopsy has been

performed on the deceased by the Institute of Forensic Medicine,

Medical Faculty Skopje, and the Ministry of Health formed by

decree a Commission for supervising the professional activities of

the Department of gynecology and obstetrics at P.H.I. Clinical

Hospital "Dr. Trifun Panovski" - Bitola.


Under suspicion of violation of the right to conscientious

treatment, criminal proceeding42

has been initiated in front of the

Basic Court in Bitola. The procedure still has no final conclusion.

41

The case was identified in the field and reported to ROMA S.O.S. by

C.D.R.C. "Bairska Svetlina" Bitola, as an associate to the project. C.D.R.C.

"Bairska Svetlina" during the advocacy of the case provided logistical

support in both, communication with the injured parties and the relevant

institutions, in the interest of protecting the rights of the injured parties. 42

ROMA S.O.S. hired the lawyer Blagoj Dimovski from the law office

"Petlickovski" - Bitola to protect the rights of the injured husband of the

deceased woman who was giving birth during the criminal procedure, and

he will also advocate the interests of the injured parties in the civil


44

At the same time, proceedings have been initiated in front of

the Office of the deputy Ombudsman in Bitola under suspicion of

discrimination in access to health care, violation of the right to access

to information and delay of the investigation in front of the Basic

Court in Bitola.

3.2.3. Explanation of the criminal procedure

The case ex officio was taken over by the basic public

prosecutor in the Basic Court in Bitola, and after applying the request

to the investigative judge, an investigation had been initiated.

In May 2013 indictment was filed against a physician

specialist anesthetist for the crime of "Heavy offenses against public

health" and "Unconscientious treatment of sick people" of the

Criminal Code of the Republic of Macedonia. The doctor is

employed at P.H.I. General Hospital "Borka Taleski" Prilep, and on

basis of agreement between health institutions he is also engaged in

P.H.I. Clinical Hospital "Dr. Trifun Panovski" Bitola.

Actions undertaken by the injured party (the husband of S.V.) in

front of the institutions for protection of the rights

From the date of the death of S.V. until the initiation of the

indictment more than a year has passed, which alluded to doubts

about delaying of the investigation, and it emerged the need to

undertake parallel legal actions for protection of the rights.

А) Office of the deputy Ombudsman - Bitola


In this case, late filing of the indictment by the Basic Public

Prosecutor to the Basic Court in Bitola was noted, late submission of

the obduction finding to determine the cause of the death of the

woman giving birth by the Institute of Forensic Medicine, Medical

procedure in order to exercise the right to compensation for suffered mental

pain as a result of the death of S.V. from unknown reasons.


45

Faculty of Skopje and the time needed for Basic Public Prosecutor to

decide on further action based on the evidence gathered.

Intervention undertaken by the injured party

Two complaints were filed, one against the Basic Court in

Bitola under suspicion of delaying the course of the investigation and

not taking measures to accelerate the hearing and after two months

after the death, and one against P.H.I. Clinical Hospital "Dr. Trifun

Panovski" - Bitola under suspicion that not all measures have been

undertaken to protect the life of the woman giving birth that resulted

in death.


In his response, the deputy Ombudsman informed the injured

party that acting upon the complaint against the medical facility, the

facility does not have the requested information since an

investigation about the case is being conducted.

For these reasons, the Ombudsman has no basis to pursue the

procedure upon the complaint, but he instructed the injured party to

file a complaint again in order to accelerate the investigation if there

is suspicion of undue delay.

Actions undertaken by ROMA S.O.S. in front of the institutions


Facts and circumstances related to the death of S.V., but also those

that followed her death, indicated potential unequal treatment in

several areas of the several grounds of discrimination. Namely, the

husband of the deceased and her relatives faced limited access to

information about the condition of S.V., the course of the treatment,

as well as actions and measures undertaken to protect her life.


46

A) Office of the deputy Ombudsman - Bitola


There was suspicion of violation of the right to equal access

to health services, as well as violation of the right to be informed by

health workers.


A complaint about multiple discrimination was filed to the

Office of the deputy Ombudsman in Bitola against employees at the

Clinical hospital, which states that the illegitimate partner of the late

S.V. faced discrimination based on belonging to a marginalized

group and education.


From the response that was received, the procedure was

elaborated and irregularities in the work of the team of the hospital

were identified in accordance with the report of the Commission for

supervision of the professional work in P.H.I. Clinical Hospital "Dr.

Trifun Panovski" - Bitola, established by order of the Minister of

Health in relation to the examination of the medical treatment of

S.V., the woman who was giving birth.43

43

(1) Irregularity/lack in the running of the hospital documentation

concerning obstetric history and there is no written document by the

anesthesiologist, that was obligation.

Proposed measures to eliminate this irregularity: to run complete and

accurate medical records in chronological order with a description of all

therapeutic and diagnostic procedures, and in cases that are of high risk and

endanger the health and lives of patients, to engage a person who will

record the applied diagnostic and therapeutic procedures in a chronological

order.

(2) Irregularity/lack in the methodology of communication between teams

i.e. health workers, because of what the patient was left to wait for surgery

for a long period of time.


47

Based on the statement and report of the Commission for

supervision of the professional work of the Department of

Gynecology and Obstetrics, Minister of Health immediately sent an

order to the institution to eliminate identified deficiencies and to

implement the proposed measures in as short term as possible.

However, it was not determined whether the actions of the

health workers were discriminatory and with unequal treatment, that

as an issue was not addressed at all by the deputy Ombudsman,

although it was required his action on this question.

3.2.4. Explanation of the grounds for initiation of a civil

action for compensation

There is an ongoing review of the possibility and basis for

initiating a civil procedure for compensation from P.H.I. Clinical

Hospital "Dr. Trifun Panovski" - Bitola for violation of personal

rights and mental pain suffered by the S.V.’s husband and their

children, caused by the death of the mother, according to the Law on

Obligations.

The grounds for this kind of action arises as a result of the

overall existing materials of a criminal trial that confirms that there

are irregularities and flaws in both, the treatment of the mother and

the equipment in the health facility, which show causation of the

death of the mother and a violation of the rights of the family

members.

Proposed measure: to define the manner of communication and

organization between the teams in order to achieve fast organization to

implement appropriate therapeutic and diagnostic procedures.

(3) Irregularities/lack of equipment in operating rooms and hospital wards,

required and mandatory in the rooms where complicated surgical

procedures are performed.

Proposed measures: kapnograf should be provided in the rooms where

more complicated surgical procedures are performed or at urgent pathology.

Proper defibrillator to be provided in the operating rooms.


48

Identied violated rights: right of conscientious treatment

(indicating the need for attention while performing medical duties).

Initiated proceedings: civil procedure.

Institutions: Basic Court Kocani, Appeal Court Stip.

Outcome: civil procedure was effentivelly completed with positive

judgment or given compensation for decreased physical function as a

result of medical error.

3.3. CASE S.F. FROM DELCEVO:

...Decreased physical function

and unconscientious treatment


51


On 16th May 2011, S.F., 63-year-old Roma woman from

Delcevo, in a fall from stairs injures the right shoulder and suffered a

fracture. After the examination by a doctor-orthopedist at P.H.I.

General Hospital Kocani, a gypsum langeta was put on her forearm

but not on the proper place (from the elbow to the wrist) and the

condition of S.F. worsens. Because of the persistent pain and

swelling in the shoulder, S.F. requested an expert opinion from

another orthopedic surgeon in the same hospital, who placed second

gypsum (from the neck to the wrist) and issued a referral for

treatment in P.H.I. Clinical Hospital Stip. There, a need for surgical

intervention was determined and placing an artificial joint due to

reduced function of the arm.44


Under suspicion of violation of the right to conscientious

treatment and not paying attention while performing medical duties,

a civil proceeding for compensation was initiated.

3.3.3. Explanation of the civil proceeding for compensation

In March 2012, a complaint was filed in front of the Basic

Court Kocani against P.H.I. General Hospital Kocani and against the

doctor who initially treated S.F., demanding compensation for the

reduced life activity of her arm, suffered fear, physical and mental

pain, according to the Law of Obligations, and as a result of

conscientious treatment and treatment the fracture.45

44

After the injury, the case was documented by the association KHAM

Delcevo within the project "Para-legal aid" and then transferred to ROMA

S.O.S. and further advocacy of the rights of the injured party in the

litigation has been requested. The association KHAM provided logistical

support in communication with the injured party, the lawyer and organizing

meetings for mutual coordination in terms of advocacy during the whole

course of the judicial proceeding. 45

Lawyer Aksel Ahmedovski from Delcevo was hired to protect the rights

of the injured party during litigation.


52

After two trials, in October 2012 a judgment was made that

did not approve compensation, since no medical error was

determined during the treatment.

Actions undertaken by the injured party in front of the institutions


The judgment was contrary to the report46

of the forensic

medical expertise, that showed that there are irregularities in the

treatment because of which S.F. obtained permanent disability and

20% reduction in the functionality of the arm.

Intervention undertaken by the injured party

In November 2012 an appeal was filed to the Appeal Court

Stip against the judgment that was made by the Basic Court Kocani

and incorrectly determined facts and circumstances that affected

S.F. to acquire a permanent disability.


Within two months of the filing of the appeal, the Appeal

Court Stip made a decision to return the case for retrial in front of the

Basic Court Kocani and provided instructions for determining the

decisive facts.

Achieved changes

In April 2013 a judgment was made in which was

established that there is medical error in the method of treating the

patient and not acting in accordance with the medical science by the

doctor in performing his/her profession, and as a result of that S.F.

suffered unnecessary pain and has reduced functionality of her arm

and 20% disability.

An amount of 200.000,00 denars was given as a compensation for

the damage, which in September 2013 was paid by the P.H.I.

General Hospital Kocani on the account of the injured party S.F.

46

Expert report and opinion were prepared by the expert, Prim. Dr. Filip

Todorovski, specialist in general surgery and subspecialist in traumatology.

Identied violated rights: right to information, right to access to medical records, right to equal treatment in health care.

Initiated proceedings: quasi-judicial protection.

Institutions: Ofce of the deputy Ombudsman – Bitola.

Outcome: quasi-judicial procedure - stopped.

3.4. CASE A.J. FROM BITOLA:

...The death of a newborn

from unknown reasons


55


On 08.02.2012 at the Department of Gynecology and

Obstetrics at P.H.I. Clinical Hospital "Dr. Trifun Panovski" 20-year-

old Roma woman from Bitola gave birth to a baby boy. Two days

after giving birth, the child was taken from his mother by the health

workers and was put in a separate room in an incubator, since they

noticed change in the color of the body of the baby. The mother and

the closest family members were not given information about the

health condition of the child, and their request to see the newborn

was rejected. The next morning the family was informed that the

newborn passed away of unknown reasons, and they were not given

detailed information what exactly led to this outcome.47

According to medical protocols, the body was immediately

sent to the Department of Pathology at P.H.I. Clinical Hospital "Dr.

Trifun Panovski" Bitola to perform an autopsy and determine the

cause of death. The body of the deceased newborn was never

returned to the family, and was treated as medical waste, without

parental consent.


There are doubts that the parents of the newborn during the

whole period faced violation of the right of access to information,

right to equal treatment in the provision of health services and the

right of access to medical records.48

47

The case was reported by C.D.R.C. "Bairska Svetlina" Bitola as an

associate of the project and then it was documented with facts by ROMA

S.O.S. During advocacy of the case by C.D.R.C. "Bairska Svetlina" Bitola,

logistical support has been provided in the communication with both, the

injured parties and relevant institutions, in the interest of the protection of

the rights of the injured parties. 48

Lawyer Blagoj Dimovski from the law office" Petlickovski" – Bitola, was

hired to protect the rights of parents and to initiate proceedings based on

identified irregularities.


56

3.4.3. Explanation of quasi-judicial protection

Limited and insufficient access to information about the

health condition of the newborn before his death, and the cause of

death and the procedure of autopsy, according to the Law for

Protection of Patients' Rights and the Law on Health Insurance, were

identified as irregularities that parents have faced in their access to

health services and care.

The Apgar score in which health workers describe the health

condition of the infant at the time of birth is still missing from the

documentation, and in the quasi-judical protection showed that

parents in the absence of a legal representative did not have access to

medical documentation and that there was great possibility the

autopsy not to be conducted.

Actions undertaken by the injured parties and the lawyer in front

of the institutions for protection of the rights

The facts and circumstances under which the death of the

newborn occurred, as well as the procedure of the health institution,

indicated the need for filing requirements and interventions for

access to information and insight into the medical documentation,

first to determine the causes of death, and second to determine

responsibility of the institution in handling the case.

Intervention undertaken by the injured parties

P.H.I. Clinical Hospital "Dr. Trifun Panovski" Bitola - on 23rd

March

2012 a request for information was filed regarding the autopsy and

determined causes of death.

Deputy Ombudsman Bitola - in May 2012 a complaint was filed in

order to accelerate the proceeding of the autopsy by the Department

of Pathology and to respect the given period of 6 months, because

after that period the body will be treated as medical waste and

actions can not be taken.


57


P.H.I Clinical Hospital "Dr.Trifun Panovski" Bitola - on 29th March

2012 a response to the request was received, which informed that an

autopsy has not been conducted yet, but it will be conducted

additionally and the parents of the newborn will be notified.

Deputy Ombudsman Bitola - on 18th June 2012 acting upon the

complaint, notifies injured parties that written information was

requested and received with evidence and statements from doctors

who were taking care about the infant, according to whom the baby

was born with a neat vital parameters. On the critical day, after the

morning visit, clinical findings were normal and after 3 p.m. it was

alerted that the child was blue with secretions in the mouth and it

was immediately taken to the Department of Special Care without

cardiac arrhythmia and breathing. The Ombudsman reported that the

documents supplied by the institution also contain finding of the

autopsy in order to determine the cause of death.


State sanitary and health inspectorate - Regional department for

inspection Bitola - on 12th

October 2012 a complaint was filed for

disabling access to entire medical record of the mother and infant

throughout the duration of treatment by the hospital staff, which was

necessary in order to be undertaken further actions (request for

second expert opinion, reviewing the basis for initiation of the civil

proceeding for compensation).

Intervention undertaken by the institution

State sanitary and health inspectorate - Regional department for

inspection Bitola - on 26th October 2012 the procedure was stopped

because after filing the complaint, access to the medical records and

complete documentation by the P.H.I. Clinical Hospital "Dr. Trifun

Panovski" – Bitola was provided.

Achieved changes

Medical documentation and access to medical records were

provided as well as Findings and opinion by the Department of


58

Pathology about the causes of the death of the newborn. The autopsy

determined that the cause of the death of the newborn was Atelectasa

- lack of air in certain parts of the lungs, and the lungs did not

function normaly as well as underdevelopment of the lungs. The

mother of the newborn and her family suspecting this finding,

especially because the newborn was not treated as a newborn with

pulmonary disease (on the contrary – the baby spent the first two

days with the mother), asked for a second expert opinion from the

University Clinic for Gynecology and Obstetrics in Skopje.

In the report that was submitted by the experts, it was stated

that there is deviation from the normal procedure and assessment of

the vitality of the newborn that was not conducted in the first and

fifth minute after the birth by the five parameters of the Apgar score:

color of the skin, tone, reflexes, heart rate and crying/breathing. The

first check was 25 minutes after the birth, and the physical finding

was normal, which, however, does not correspond to the

patohistological findings of the autopsy that was conducted at the

P.H.I. Clinical Hospital "Dr. Trifun Panovski" - Bitola, which shows

that the cause of death was underdeveloped lungs. Regarding this

cause of death in the pathohistological autopsy, there is no enough

data that would determine the cause of the underdevelopment of the

lungs but Atelectasis dominates as a direct consequence of aspiration

and set as a clinical diagnosis of death.

Actions undertaken by ROMA S.O.S. in front of the institutions for

protection of the rights

In this case, the circumstances indicated to suspicion of

violations of the right to equal access to health care and health

services. Also, there were doubts and discrepancies about the

treatment and attitude of the staff, particularly when the parents were

refused to be returned the body after the autopsy was performed for

traditional ceremonies, with an excuse that they do not need the body

since there is nothing to bury, and that it will be destroyed as a

medical waste.


59


On 17th October 2012 complaint was filed to the Office of

the deputy Ombudsman - Bitola against the health facility for

suspected discrimination caused on many grounds (belonging to a

marginalized community, education). Namely, the limited access to

information about the health status of the newborn, the reluctance of

health workers to peform autopsy findings to determine the cause of

death and the treatment of the body as medical waste without the

consent of the parents were cited as an explanation for unequal

treatment and discrimination committed by failing to take actions by

the institution.

Intervention undertaken by the institution

On 5th March 2013 the institution submits a notification that

proceeding is being stopped since litigation about the case is in

process, although up to this point litigation was not initiated.

However, it was not determined whether there was discrimination

and unequal treatment in the actions of the health workers as

requested in the complaint itself.

3.4.4. Explanation of the grounds for initiating a civil

action for compensation

The possibility and the grounds for initiating a civil action

for compensation from P.H.I. Clinical Hospital "Dr. Trifun

Panovski" – Bitola is in process of rewiev based on the violation of

personal rights and suffered mental pain by A.J. and her husband

because of the death of their child, according to the Law on

Obligations.

Grounds for this kind of action arisies as a result of all

material and information from the procedure so far together with the

protocol of the autopsy and additional forensic medical expertise

which determined set of certain irregularities and gaps that do not

correspond with the obduction for determining the cause of the death

of the infant. On the other hand, the grounds can be also found in the

identified violated rights of the injured parties in terms of untimely


60

information about worsening the health condition of the infant and

the treatment they received from the health workers. These grounds

cause suspision that they cause violation of the rights of the family

members, for which they will require compensation.

3.5. Promotion of the cases in the media

There is always resistance to media promotion of a particular

case by judicial authorities. This is especially because in that way

there is possibility of violation of the credibility of the judicial

authorities, function of the judges and the attention paid during

action of the authorized court on the matter.

However, the media and public promotion of the case had

the key role in the realization of the rights and initiation of the

proceedings for juvenile A.S. In particular, since this case was

publicized for the first time on 15.10.2008 on a national television

media, the basic public prosecutor took over the prosecution ex

officio and the case got its judicial epilogue. Without media

promotion and public speaking about the case, it is a question mark

whether the proceeding for protection of the rights of A.S. would

have ever been initiated, given the fact that parents have never filed

criminal charges against doctors for the damage done.

That is why the media promotion and informing the public

about these and similar situations in the health and legal systems

should be seen as an effective way through which we can contribute

to the realization of the right to health of the citizens, as well as to

cause proactive action by the authorities for protection.


61

4. ANALYSIS OF THE APPLICATION OF THE LAW

IN PRACTICE

The legal framework and position of the international law in

the national legal system (part 2) provide a good basis for protection

of the right to health and the rights associated with it. This further

strengthens by the recent ratification of the Optional Protocol to the

International Covenant on Economic Social and Cultural Rights

(ICESCR).49

As four cases presented in section 3 of this analysis show

and the numerous existing literature, in Macedonia most often the

problem is not in the legal framework, but in its implementation.

Well known is the problem with the application of the international

law in the national legal system. This application is not only

possible, but also a legal requirement50

for all institutions from any

governmental branch and any degree of internal organization of the

government and the administration,51

since it is high on the

hierarchical ladder of the legal acts - the Constitution (the highest

legal act of the state).52

However, in practice international law is

mostly ignored or neglected.53

Courts very rarely refer to

49

National government report on the second review of UPR, 08.11.2013,

para.5 50

Constitution of the Republic of Macedonia (1991 and its XXXII

amendments), Art.98, 118 51

General comment no. 3, ICESCR 52

Constitution of the Republic of Macedonia (1991 and its XXXII

amendments), Art.118 53

Extensive research on the issue - the reasons for this attitude toward this

part of the law has not been done, but some possible explanations are lack

of knowledge of this law, unavailability of sources of international law in

Macedonian (with exception of the articles on legal and binding

documents), lack of awareness of the importance of this law for the national

legal system, the manner in which the established mechanisms in practice

monitor the implementation of this law and compliance with the

international law standards, and also taking into consideration these

standards when making judicial decisions in front of regular courts. Even


62

international acts and international practice and the implementation

of decisions that affect Macedonia and are made internationally is

difficult.54

Because of this attitude towards international law,

compliance between national laws with international standards is

extremely important. By passing the laws such as the Law on the

protection of patients' rights, Law on prevention and protection from

discrimination, the new Health care law etc., national legal

framework for protection of the right to health and the rights

associated with it is being slowly upgraded, as well as protection

from discrimination. Although this framework offers a lot to be

improved,55

it seems that the main challenge is outside the frame - in

its implementation.

In context of the four cases, the application of the right to

health is illustrated taking into account the four elements according

to General comment no. 14 on CESCR and national legal framework

under which the proceedings were held i.e. violations of law were

identified.

4.1. Availability in the context of the right to

compensation

The case of S.V. from Bitola raised doubts about the

fulfillment of the obligations of the state in relation to this element.

From the report of the Commission for supervision on professional

work at P.H.I. Clinical Hospital "Dr. Trifun Panovski" - Bitola

established by the Ministry of Health, it is clear that there are

shortages of equipment in operating rooms and hospital wards,

necessary and required in the halls where they perform complicated

surgical procedures, and that great part of the necessary equipment

was not available.

when referring to international instruments and standards, it rarely goes

beyond the main affected members by the legally binding documents. 54

Najcevska, Mirjana, Judgments should be implemented (FOSM, 2013) 55

See, for example, CRPRC Studiorum, Brief information - applied

policies: How can Macedonia keep pace with European standards for

prevention and protection against discrimination (2010)


63

Lack of equipment brings the functionality of the healthcare

facility and the entire health care system in question, and on the other

hand, it can be further considered as a causal connection with the

death of the mother. It was also overviewed through the prism of the

national law and determined violations of the rights, fulfillment of

this obligation of the state has caused damage to the family of the

mother with violation of their personal rights because of the loss of a

close family member, where this violation will be basis of the appeal

seeking compensation.

4.2. Accessibility and acceptability in the context of the

right to information and the right to equal treatment

Exercising the right of access and its first four components

primarily associates with the right to non-discrimination and

equality. In fact, in all four cases there are elements of prima facie

discrimination i.e. circumstances of the cases and personal

characteristics or the status of the persons are such that make the

existence of unequal treatment possible. Although it takes a detailed

review of the cases to determine the exact identity characteristics or

status on which unequal treatment was done, in these four cases it

seems that people would have the greatest opportunity to prove

unequal treatment on the basis of ethnic background and education.

In addition, cases concerning unequal treatment of Roma are often

treated as cases of racial discrimination,56

so in a particular case it

may be shown that race (which includes color of the skin57

) was the

personal characteristic that such treatment was due to.

In the case of S.V., illegitimate partner of the deceased faced

additional obstacles in confirming paternity because of the marital

status (cohabitation) with S.V. Beside this, viewed from the

56

Examples of such cases in front of ECHR are: DH and Others v The

Czech Republic (2008) 47 EHRR 3; Horváth and Kiss v Hungary. ECtHR

(CJ), App. No. 11146/11, 29.01.2013. 57

International Convention on the Elimination of All Forms of Racial

Discrimination (21.12.1965)


64

circumstances of the case, and through the prism of the infant who

survived the birth, the status – giving birth is relevant (well-

established in the practice of ECHR) and the family status as well.

According to the practice of the ECHR, for all grounds of

discrimination listed here, with the exception of education, numerous

serious reasons should be found to justify the different treatment, and

the potential discriminator will hardly be able to show that the

unequal treatment was reasonable, served a legitimate purpose and

was proportional.58

What is observed in both cases for which ROMA S.O.S. has

filed complaints about multiple discrimination to national

mechanisms for protection against discrimination the case of A.J.

from Bitola (death of a newborn) and S.V. from Bitola (death of a

woman giving birth), in neither of them was determined whether in

the actions of the health workers there was discrimination or unequal

treatment.

Besides the access to equality and non-discrimination, the

fulfillment of obligations related to the economic affordability of the

right to health is also under question mark. This conclusion cannot

be derived from the four cases. However, it imposes through other

cases documented by ROMA S.O.S. and which were not included in

this analysis. In fact, health insurance, which in Macedonia is

universal (i.e. based on citizenship59

) for most of the Roma is the

only means which enables them access to health facilities, goods and

services. By coming into force the amendments to the legislation that

provide re-registration of insurers by filing a Statement of income in

the previous year (for which many of the holders of the rights arising

from the status insured - were not notified), many people lost their

status of insured.

This can be best illustrated by the example of S.I., a Roma

woman giving birth. At the moment when she asked for health

58

White R and Clare Ovey, The European Convention on Human Rights

(5thedn, Oxford University Press 2010), Ch.14 59

Milevska-Kostova, Neda et al, Providing a nation-based health insurance

to increase access to health care and reduce poverty (COPORE, 2010)


65

service in a health facility (delivery), she had a status of insured at

the Health Insurance Fund of Macedonia.

Due to complications, she was kept for several days at the

facility. At her dismissal, she was issued a bill for health care

services with prices that apply to persons who do not have health

insurance, since she did not submit a Statement of income in the

deadline specified by of the Health Insurance Fund of Macedonia

and thus lost the status of the insured. S.I. had not been previously

informed of the changes in her status.

Finally, the fourth component of accessibility is access to

information, which in the context of the four cases, in terms of access

to information about health condition or by the institutions

responsible for the processing of their cases, is the most endangered,

and therefore indications of ROMA S.O.S. in the complaints filed in

large part are related to the violation of this right. However, this

element is the most evident in the cases of A.J. form Bitola (death of

a newborn) and S.V. from Bitola (death of a woman giving birth).

Despite not providing information about the health status during the

treatment, persons and their families were neither given any

information about the extent of worsening of the condition, nor later

for the causes of the death. Also, in these, as in the case of A.S., and

notice from the competent authorities on the progress of judicial

proceedings (pre investigative, investigative, etc.) was missing.

Therefore, ROMA S.O.S. as a provider of legal aid, used the

main functional mean available – the Ombudsman. The association

and the concerned parties in the case received a great deal of

information through responses of the complaints submitted to this

institution.

Acceptability related to the national legislation and identified

violations of the law can mostly be seen in the context of a violation

of the right to equal treatment. The violation of this element is

mostly noticeable in the case of A.J. and the death of the newborn.

Namely, the parents, given their legal right to receive the dead body

of the newborn baby after the autopsy was completed, they requested

the body from the health workers, but they were given a response

that they will not need the body, because there is nothing to bury,


66

and that it is destroyed as medical waste. For this type of action and

treatment of the body, consent and approval from the parents were

not previously requested. This, among other things, suggests

insensitivity to traditional practices that are often intertwined and

form the basis for cultural practices, which results in unequal

treatment.

Interethnic respect for differences, respect for cultural sensitivity

and their acceptance by the health workers was missing in the other

three cases as well. However, only in the case of S.V. and A.J.,

suspicion of unequal treatment in access to health services and health

care, as well as not transferring information for the entire course of

treatment in a clear, appropriate and easily understandable language

due to the low degree of education of the injured parties, were

elaborated as basis for multiple discrimination in access to health

services in the proceeding in front of the Ombudsman.

4.3. Quality in the context of the right to conscientious

treatment

Although in the four cases it is difficult to derive irrefutable

argument against fulfillment of the obligation for quality of the

health facilities, goods and services, the violation of this right in the

cases is associated and considered in terms of violation of the right to

conscientious treatment and giving needed attention in compliance

with the medical profession. Such example is the case of S.V. from

Bitola. According to the report of the Committee constituted by the

Ministry of Health, a long period of time has been noted from

establishing the indication to the birth of the baby and this period is

inadmissible in case of need for rapid intervention, especially when

suffering of the fetus is noted.60

In addition, untimely given health

services, which in a great deal is due to non established procedures

and bad coordination for cooperation among health workers, can be

interpreted as a lack of quality in services.

60

Source: Report of the deputy Ombudsman after ROMA S.O.S. filed a

complaint


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The same applies to the case of juvenile A.S., in which

apparently due to irregularities in providing relevant, timely and

quality health services, the result was amputation of his arm.

These irregularities are identified in the report of the

Commission for establishing the facts and circumstances determined

by order of the Ministry of Health, that there is inadequate treatment

by doctors, untimely surgical treatment of the injury, late registration

of the change of the arm, but also late removal of the plaster. On the

other hand, deviation from the standards of the medical science and

ethical principles, and as a result of insufficient attention and

conscientious treatment by the doctors in the treatment and treating

of juvenile A.S., it was confirmed by the final judgment by the Basic

Court Prilep, in the criminal but also in the civil proceeding.

Violation of the right to quality in the case of S.F. from

Delcevo resulted in a 20% disability and decreased function of the

arm due to not complying with the medical science by the doctors in

practicing their profession. In the case of A.J., deviations from the

normal procedure were determined immediately after the birth of the

newborn, whereas assessment of the vitality of the newborn in the

first and fifth minute after the birth in the five parameters of the

Apgar score was not conducted which is an obstacle to get quality

information about the health condition of the newborn immediately

after the birth and from which a need for further observation by the

health workers could arise.


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5. ACCESS TO JUSTICE

The cases presented in this analysis suggest that many of the

problems that people whose rights were violated face when asking

for legal protection are related to capacity, performance and

independence of the judicial system. Mostly, exceeding of the legal

limits is noted, long duration of the procedures with often delays of

the trials (as in the example of Cf. Alyne da Silva Pimentel against

Brazil - appointment of medical experts who would examine the

case, as well as delays in trials and sentencing judgments, are not

arguments that can justify the delay61

). In addition, in all four cases

there was a report or opinion given by Commission of the Ministry

of Health, or findings of experts that have determined medical

error/irregularity, and yet, the proceedings are not completed within

the legal limits.

What is also concerning is the frequent need of additional

interventions during the procedure not only for its acceleration, but

also just to move the proceedings from the "dead spot" (lack of any

development in longer period of time) or to prevent the obsolescence

of the case. In all cases that were referred to, it seems that without

interventions of ROMA S.O.S. great deal of the information would

not come to people whose rights have been violated and to their

families, but also that people alone would not be able to put pressure

and take advantage of all available resources. Also, access to justice

is limited because of past practice and according to previous opinions

of our courts, that in proceedings for compensation by the

responsible person, it is necessary first to be determined the possible

fault in criminal proceedings and such proceedings to be concluded

by a final judgment. This is particularly noticed in the case of

juvenile A.S. where two civil proceedings for compensation were

terminated until final completion of the criminal proceedings.

However, the actions undertaken by the lawyer against such

decisions that resulted in returning the proceedings in front of the

61


17/2008 (2011), para. 6.2


69

Basic Court Prilep to be solved independently of the criminal

procedure is important because it deviates from the practice. Namely,

in this case, the court accepted that there is civil liability of the

employer that is independent of the criminal responsibility.


70

6. CONSLUSIONS AND OBSERVATIONS IN ORDER

TO ENHANCE THE PROTECTION OF THE

RIGHT TO HEALTH

This analysis provides conclusions and observations that are

emerging as a result of the identified actions in the cases of violation

of the rights of health care for Roma patients, and that should serve

as general guidelines for improvement of the existing legal

framework, legal practice and other practices, in order to improve the

conditions for realization of the right to health and the rights

associated with it, as well as to promote the principle of equality and

protection from discrimination.

6.1. Conclusions

1. Existence of prejudices and stereotypes among health

workers towards Roma community, based on the level of

their education, social and economic background and

ethnicity, affects the quality of health services provided.

2. Not meeting the obligation of the state, to provide quality

health facilities, goods and services and enabling their

functionality and availability, results in irregularities in the

provision of timely medical services, non - established

procedures and coordination among health care workers.

3. Roma patients have limited opportunities to access

information and to exercise their rights in the absence of

legal representative, and injured parties due to fear of

victimization, disclaim protection of this right.

4. Authorities for protection of the rights evade in providing

timely and fair care to injured parties or disadvantaged

persons that obstructs the access to justice.


71

5. Responsibility of the doctors often is not reviewed by a legal

point of view, but more from the perspective of respect for

their Hippocratic Oath and duty to humanity, which

questions the objectivity of fair judgment.

6. Unequal treatment is not being considered as a violation of

the rights i.e. in absence of practice for such violations,

competent authorities fail to identify the grounds for action,

and the small number of complaints to the competent

institutions is due to the complexity of identifying and

proving discrimination.

7. Application of protective mechanisms may affect processing

of certain litigations, but because of lack of their mandatory

application, they affect only partially.

8. In cases where there is violation of the right to health on

several grounds and opportunity for initiating appropriate

procedures, the injured parties often require protection of the

right only on ground, and therefore neglecting the other

grounds for protection.

9. Application of the international law in the national legal

system and practice in great part is ignored or neglected.


72

6.2. Observations

1. By positive judgments made in favor of the injured parties,

the courts give signal to the patients that no matter how

much time it takes to justice, it is not unreachable for them,

and on the other hand, the doctors and other health workers

have been under influence as well, that there is no need to

fear while performing their duties if they do that

professionally, conscientiously and responsibly, in

accordance with the rules of the medical profession, medical

standards and ethical principles. This is seen in the context of

the need for the courts to pay more attention to the protection

of the right to health, which will improve functioning of the

health system in R.M., and in accordance with international

standards. In that context, the procedures conducted in front

of courts are extremely important because they break down

the adamantine opinion that health workers are "protected"

and can not be held accountable.

2. The government/state should make efforts to harmonize

national legislation with the international, which will enable

their respect, and therefore practical application in front of

national courts and institutions.

3. Legal practitioners should commit to initiating court

proceedings and quasi – judicial cases of unequal treatment

in access to health care services that will enable/contribute to

increase the scope of protection of citizens' rights and

strengthen their capacity in advocacy of discriminatory

cases.

4. Authorities for protection should approach violations of the

right to health and equal treatment to patients more

intensively and progressivly in order to emphasize their role

and influence in the protection of the right, where except for

complaints, they will take action on their own initiative.


73

5. Health facilities should be fully and professionally staffed,

both in terms of materials, equipment, and in terms of human

resources, which will provide quality healthcare to patients.

Therefore free exercising of the right to access to

information for all and equally understandable language by

the level of education, social and economic backgrounds of

patients should be allowed and thus improve the access of

vulnerable groups to health services and protection from

discrimination.

Documents

Right to health and health care of the Roma from the ...romasosprilep.org/wp-content/publications/analizi/Analiza_Angliska.pdf · care of the Roma from the practice of ... Right to