Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

1. With reference to its previous observation, the Committee recalls that the Union of Autonomous Trade Unions of Croatia (SSSH) alleged, in the comments dated 15 March 1995, that a large number of workers in Croatia were denied health protection on the basis of section 59 of the Health Insurance Act enforced as of 13 August 1993 which provides, in particular, that for contribution payers who fail to pay the insurance contribution, the use of health protection funded by the Croatian Institute for Health Insurance shall be reduced to the right to emergency medical aid only. The SSSH pointed out that under the said legislation the obligation to pay contribution rests with the employer who deducts it from the wage of the insured workers employed by him, and that in case the employer fails to pay the contribution, the insured worker has no legal possibility personally to pay the contribution, nor does he have any other legal means of recourse to force the employer to pay it, while the Institute to which the contributions are paid has the legal possibility to exact payment from employers. The Committee further recalls that, in its reply, the Government indicated that the amendments to the Health Insurance Act, in force since July 1996, empower the Institute to collect arrears of contributions, which measure would be directed exclusively towards employers who are obliged to pay them. The Committee has therefore asked the Government to supply a copy of the amendments in question and to confirm that the legal provisions contained in section 59 of the Health Insurance Act, as well as the practice referred to by the SSSH, concerning the restriction of health protection funded by the Institute of Health Insurance to emergency medical aid, in case of non-payment of contributions by the employers on behalf of their insured workers, were in fact abolished in conformity with Article 69 of the Convention.

The Committee notes the new comments communicated by the SSSH in April and September 1997, as well as the Government's reply to them received 1 December 1997.

As regards the amendments referred to by the Government, the SSSH states that the Government passed a regulation concerning deduction of insurance contributions before payment of workers' wages, but this regulation did not have any effect; as regards the above-mentioned provisions of section 59 of the Health Insurance Act, they remained unchanged in the text of this Act published in the Official Gazette No. 1/97 of 3 January 1997. Thus, according to the SSSH, the reduction of the right to health care continues to be implemented for categories of workers whose employers fail to pay contributions on their behalf and became a mass phenomenon. As a result, a great number of citizens are denied special health care and hospital care, including surgery, diagnostic examination and numerous health services guaranteed by the Constitution of the Republic of Croatia and by Convention No. 102. In support of these statements, the SSSH provides translation in English of two letters, dated 24 June and 23 July 1997, sent respectively by the national Croatian Institute for Health Insurance to its regional offices and by the regional Zagreb office of the Institute to health centres and physicians. Both letters in their English translation expressly invoke the provisions of section 59 of the text of the Health Insurance Act and ask health centres and physicians to reduce benefits of health care payable by the Croatian Institute for Health Insurance to the right to emergency aid in respect of all employees and members of their families contribution-payers who have not partially or totally settled their contributions for three months and more, subject to certain exceptions. Attached to the second letter is the partial list of persons to whom this measure is applied. This letter expressly states that, if beside emergency aid, the health centres and physicians give these persons other medical assistance, the Institute will not cover their expenses. Finally, the SSSH informs that, as early as 9 March 1995 and subsequently on 17 April 1997, it has requested the Constitutional Court to pronounce on the constitutionality of section 59 of the Health Insurance Act, and that separate letters were also sent at this latter date to the Government and the Parliament drawing attention to the case.

In its reply, the Government indicates that section 59 of the Health Insurance Act (Official Gazette Nos. 1/97 and 109/97) provides that the Institute is obliged to monitor the collection of contributions for compulsory health insurance, and regulates that health care may be reduced to urgent medical treatment if the contributions have not been paid; urgent medical treatment meaning in fact the provision of health care which is needed for the removal of the risk to one's life or for the prevention of deterioration of one's health condition. From the circular letters sent by the Institute and its regional office in Zagreb, it is clear that this case refers to the reduction of health care rights and not to the denial of these rights, as alleged by the SSSH. Besides, these letters speak of the provision of urgent medical treatment and not of the "emergency aid", as it is stated by the SSSH. Furthermore, the instructions from the circular letters specify that the reduction of health care does not apply to children under 18 years of age; pregnant women receiving health care with regard to pregnancy and confinement; soldiers in the homeland war; and certain joint-stock companies. On the basis of these arguments, the Government concludes that this is not a case of the deprivation of rights to health care, particularly as regards the rights guaranteed by Articles 8 and 9 of the Convention, and that the information contained in the complaint of the SSSH referring to the activities of the Institute in the application of health insurance regulations is incomplete and, therefore, to a large extent not true. Finally, with respect to the SSSH's statement that workers can not have influence on the payment of contributions by their irresponsible employers, the Government specifies that, according to the Institute, the irregularity in the payment of health contributions is frequently manifested for the category of insured who are self-employed persons and thus are obliged to make their contribution payments by themselves.

The Committee takes good note of the information supplied by the Government. It did not find however a reply to its request formulated in its previous observation asking for the text of the amendments to the Health Insurance Act, which, according to the Government, were to ensure that arrears in insurance contributions would be collected by the Institute so that these measures will be directed exclusively towards employers who are obliged to pay them. The Committee further observes that the Government does not contest the SSSH's statement that the provisions of section 59 of the said Act concerning the restriction of health protection funded by the Institute in respect of workers for whom contribution was not paid by their employers, continue to be widely applied in practice. The Government insists however, with reference to Articles 8 and 9 of the Convention, that the effect of such restrictions consist not in totally depriving the persons concerned of the right to health care, but of reducing it to urgent medical treatment which, according to the Government, has a larger meaning than the term "emergency aid" used by the SSSH and includes not only the removal of the immediate risk to life, but also "the prevention of deterioration of one's health condition". It also indicates the categories of persons to whom this limitation is not applicable.

The Committee wishes to point out that the types of the medical care to which persons protected should be entitled as of right in respect of a condition requiring medical care of a preventive or curative nature, in accordance with Article 7 of the Convention, are laid down in its Article 10, and that the purpose of Articles 8 and 9 in this respect is to ensure respectively that such medical care should be provided for any morbid condition, whatever its cause, and be available for all persons falling under the scope of Article 9. It recalls that Article 69 of the Convention which enumerates the cases in which benefits provided under the Convention, including medical care, may be suspended, does not refer to the situation of non-payment of contributions on behalf of the insured person. The Committee would therefore once again ask the Government to indicate the measures taken or contemplated to bring its national legislation (section 59 of the Health Insurance Act) and practice in this respect in compliance with the Convention. The Committee would be equally grateful to receive a copy of the decision of the Constitutional Court of the Republic of Croatia on this case, if taken.

The Committee furthermore notes a new communication from SSSH received on 20 November 1997, in which it supplies a copy of the letter of an opposition Member of Parliament to the President of the House of Deputies requesting a public written reply on the measures contemplated in order to harmonize section 59 of the said Act with the Croatian Constitution and Convention No. 102. As the Government had not yet the opportunity to reply to this communication, which was transmitted to it by the Office, the Committee hopes that its next report would include a copy of such written reply.

Finally, the Committee wishes to draw the Government's attention to the fact that its comments refer exclusively to the granting of medical care as provided for under Articles 7, 8 and 10 of the Convention to the employees protected for whom payment of contributions under the Croatian law is a legal obligation of their employer, and not to the self-employed persons who, as stated by the Government, have to pay their contributions by themselves.

2. The Committee notes the communications, dated 23 April and 12 August 1997, from the Association of Clubs of Military Retirees of the Union of Retirees of Croatia concerning the application of Conventions Nos. 48 and 102, as well as the Government's reply to them. In view of the fact that this reply was received shortly before the opening of the Committee's session, it decided to examine the questions raised as regards the payment of retirement pensions of the members residing in Croatia of the former federal army (JNA) at its next session, together with any additional information which the Government may wish to supply in this respect.

[The Government is asked to report in detail in 1998.]