MEDICINE, LAW & SOCIETY 
Vol. 14, No. 2, pp. 271–300, October 2021  
 
https://doi.org/10.18690/mls.14.2.271-300.2021 
© 2021 University of Maribor, University Press  
 
 VIOLATIONS OF THE RIGHT TO HEALTH DUE 
TO LIMITED ACCESS TO PROTECTION OF 
HEALTH DURING THE COVID-19 PANDEMIC 
IN THE REPUBLIC OF CROATIA AND POSSIBLE 
LEGAL IMPLICATIONS 
  
Accepted  
05. 07. 2021 
 
Revised 
10. 09. 2021 
 
Published 
29. 10. 2021 
Nina Mišić Radanović 
University of Split, University Department of Forensic Sciences, Head of Chair of Law 
Sciences in Forensic, Split, Croatia. 
E-mail: nina.misic.radanovic@unist.hr 
 
CORRESPONDING AUTHOR 
nina.misic.radanovic@unist.hr 
 
Keywords 
inaccessibility to 
healthcare,  
anti-epidemic  
measures,  
vulnerable  
groups,  
legal  
consequences,  
force  
majeure/absolute 
necessity 
Abstract The battle against the COVID-19 pandemic is still 
the most important problem and a great challenge for the 
overburdened health system in the Republic of Croatia. This 
paper examines the research into how violations of humans’ 
right to health occurred due to the inaccessibility to health 
protection for uninfected persons during the COVID-19 
pandemic. The research implemented showed that a system of 
anti-epidemic measures which completely suspended or 
significantly reduced the possibility to access primary and 
hospital health care, stopped preventive programs of cancer 
detection. Much medical research has already revealed the 
possible harmful effects to people's health in the increase in 
cases of the contraction of and death from cancer and other 
serious illnesses, particularly in relation to certain vulnerable 
groups for example, women and oncology patients. The author 
concludes that the right to access protection of health during 
the COVID-19 pandemic in the Republic of Croatia was 
significantly limited and analyzes possible legal consequences 
which could occur due to the suspension or limitation to the 
right to access health care as a violation of the right to health. 
 
 
272 MEDICINE, LAW & SOCIETY.   
 
1 Introduction 
 
The COVID-19 pandemic, which is a new disease caused by the SARS-CoV-2 virus, 
has posed serious challenges for societies all over the world. The effects of this threat 
to public health will be felt for generations. The attention of both the general and 
professional public is focused on issues of varying forms of inaccessibility to 
healthcare and protection of health resulting from the pandemic. The accessibility 
of healthcare as an imperative component of the right to health during the pandemic 
has been severely disrupted and has had and will certainly continue to have serious 
implications for people's life and health. It is a fact that the pandemic does not affect 
all people equally because some have access to life saving protection of health while 
others do not (Statement on European Solidarity and the Protection of Fundamental Rights in 
the Covid-19 Pandemic, 2020: 88). The lack of access to healthcare has impacted not 
only people infected with the coronavirus and who were sick with COVID-19 but 
also those who needed protection of health in the form of diagnostics and/or 
therapy for other serious illnesses. The pandemic, extraordinary as it may be, 
nevertheless should not be a justification for the consequences which will lead to an 
even larger number of lives lost and worsening of health due to the inaccessibility of 
healthcare. “Everyone, without exception, has the right to life-saving interventions 
and this responsibility lies with the government. The scarcity of resources or the use 
of public or private insurance schemes should never be a justification to discriminate 
against certain groups of patients. Everybody has the right to health" (The Office of 
the High Commissioner for Human Rights UN, 2020). This particularly relates to 
vulnerable groups of people such as oncological patients, people with disabilities, 
older persons, minority communities, indigenous peoples, internally displaced 
people, people affected by extreme poverty, people who live in residential 
institutions, people in detention, homeless people, migrants, addicts, etc. (The Office 
of the High Commissioner for Human Rights UN, 2020). This non-discriminatory 
approach to health protection and human equality demands that special attention is 
given to certain vulnerable groups. In addition to social inequalities which worsen 
the risk of contracting COVID-19, among those key vulnerable groups are the 
elderly with chronic conditions and non-COVID infected persons with other serious 
illnesses (Montel et al., 2020: 230). Therefore, the right to health presumes the 
principle of accessibility, equality and equity: accessibility is ensured by physically, 
geographically and economically accessible protection of health, particularly at the 
N. Mišić Radanović: Violations of the Right to Health due to Limited Access to Protection 
of Health During the COVID-19 Pandemic in the Republic of Croatia and Possible Legal 
Implications 
273. 
 
 
primary level, while equity is ensured by not permitting discrimination (Mujović 
Zornić, 2016: 58). 
 
The fight against the pandemic is still the most pressing problem facing the 
healthcare system in Croatia. Given that the Law on Protection of the Population 
from Infectious Diseases guarantees all persons with infectious diseases both the 
right and the obligation to treatment and to adhere to regulations and directions, it 
necessarilly follows that all those infected with COVID-19 should be ensured access 
to treatment. However, stress on the healthcare system stemming from the 
pandemic has greatly reduced both material and human resources required for 
treating non-infected patients as well as for implementation of screening programs 
to detect and prevent cancer. Also, in the so-called „third wave“ of the epidemic that 
occurred in Croatia in April 2021, all non-urgent operations were postponed and 
treatment for oncological patients and patients in intensive care units was 
significantly reduced.1 
 
Since the pandemic has had such negative consequences on the overall right to 
health as defined by international law, it is necessary to critically question to what 
extent directions for combatting COVID-19 were instituted pursuant to the legal 
framework of the right to health (Montel et al., 2020: 228). It is indisputable that 
measures taken to fight the epidemic, although undertaken to protect lives and 
people's health, limit certain other human rights and freedoms (Omejec, 2020). 
 
The aims of this paper are both to analyze how violations of the human right to 
health occurred because people were unable to access or had limited access to the 
protection of health during the COVID-19 pandemic in Croatia and to determine 
what health and legal consequences resulted as a consequence.  
  
 
1 Doctor from Varaždin: 26 persons on respirator, must cancel some operations, N1 from 22 April 2021. 
274 MEDICINE, LAW & SOCIETY.   
 
2 Brief overview of legal regulations pertaining to access to protection 
 of health in international documents 
 
The right to health is defined in international law accepted by Member States of the 
United Nations (hereinafter: UN), the Council of Europe (hereinafter: CE) and the 
European Union (hereinafter: EU). The inalienable right to health is an inclusive 
right whose essential elements are: availability, accessibility, acceptability, quality, 
participation and accountability (OHCHR and the right to health). It includes four 
standards (AAAQ) which protection of health must have (Marković, 2016: 119). 
Core minimum obligations emerging from the right to health are contained in 
General Comment No. 14: The Right to the Highest Attainable Standard of Health2 
(Committee on Economic Social and Cultural Rights UN, 2000), which first places 
the obligation to ensure the right to access health institutions, goods and services on 
a non-discriminatory basis, particularly for vulnerable or marginalized groups. Even 
though this document is not legally binding, it is nevertheless the basis for 
interpreting the normative contents for the right to health and for its adjustment in 
the context of the COVID-19 pandemic (Montel et al., 2020: 228). The Universal 
Declaration on Bioethics and Human Rights (UNESCO, 2005) emphasizes that 
health is fundamental to life and that enjoying the highest standards of health care 
which can be reached represents one of the fundamental rights of every human being 
without discrimination. Therefore, it is a governmental obligation to enhance 
accessibility to quality health care and basic medicines, particularly for the health of 
women and children (Article 14. sec. 2. a). 
 
The right to health is not found expressis verbis among legal guarantees in the 
European Convention for the Protection of Human Rights and Fundamental 
Freedoms (hereinafter: ECHR) or its Protocols. Nevertheless, countries according 
to decisions of the European Court of Human Rights (hereinafter: ECtHR) related 
to Article 2 and Article 8 of ECPHR, must pass regulations binding public and 
private hospitals to adopt appropriate measures for the protection of the life and 
corporal integrity of their patients (ECtHR, Jurica v. Croatia, & 84). In the EtCHR 
judgment of 2001 of Cyprus v. Turkey (appl. 25781/94) the court held that pursuant 
 
2 Explanation of contents of right to health from article 12 of International Covenant on Economic, Social and 
Cultural Rights UN which acknowledges that everyone has the right to enjoy the highest possible standards of 
physical and mental health. 
N. Mišić Radanović: Violations of the Right to Health due to Limited Access to Protection 
of Health During the COVID-19 Pandemic in the Republic of Croatia and Possible Legal 
Implications 
275. 
 
 
to Article 2 of ECHR, government liability is possible if it risks the life of an 
individual when it denies him/her medical care available to the general public 
(Murgel, 2020: 26). The right to health includes the right to prevention, treatment 
and monitoring of illness and equal and timely access to health services such as basic 
medicine and medical care. Everyone has the right to access preventative protection 
of health and the right to health protection under the conditions established by 
national law and practice (Article 35 of the Charter of Fundamental Rights of the 
European Union). In achieving the right to health care, all forms of discrimination 
are prohibited on any basis such as gender, race, color of skin, ethnic or social origin, 
genetic features, language, religion or beliefs, political or any other opinion, 
membership of a national minority, property, birth, disability, age or sexual 
orientation (Article 21 of the Charter of Fundamental Rights of the European 
Union). The Council of Europe in the Oviedo Convention prescribes the obligation 
to ensure equitable access to health care of appropriate quality, taking into account 
health needs and available resources (Article 3). The European Committee of Social 
Rights issued a Statement of Interpretation on the Right to Protection of Health in Times of 
Pandemic emphasizing the interrelation of the right to protection of health with other 
rights enshrined in the European Social Charter (April 2020). This Statement is 
based on the powerful international legal framework on the right to health (Montel 
et al. 2020: 238). At the same time, Article 11 of the European Social Charter 
prescribes that the right to protection of health stipulates preventing, as far as 
possible, epidemic diseases. Every person has the right to timely access to quality, 
preventative, and curative health care. Timely access means that everyone can access 
health care when needed. Good quality healthcare means that it should be relevant, 
appropriate, safe and effective. (European Commission, European Semester 
Thematic Factsheet, Health systems, 2017: 2). 
 
Also relevant for analyzing the present topics are documents by the World Health 
Organization (hereinafter: WHO) concerning COVID-19, like operational guidance 
for maintaining essential health services during an outbreak: interim guidance of 
2020. These guidelines emphasize the need to establish which health services and 
care must continue to be given to patients not infected with COVID. In order to 
reduce the risk of the health system collapsing, the guidelines suggest that many 
services can either be postponed or halted. Also, governments must establish a triage 
system so as to effectively manage the flow of patients in cases involving both Covid-
276 MEDICINE, LAW & SOCIETY.   
 
infected and non-Covid infected patients. If offering basic services is threatened, it 
is necessary to identify those health services which should be given priority and these 
are: prevention of infectious diseases, particularly vaccination; reproductive health 
including care during pregnancy and giving birth; care for vulnerable groups such as 
newborns and the elderly; chronic illnesses and mental health conditions; continuity 
of inpatient therapy; emergency health conditions and basic diagnostic medical 
imaging, laboratory services, and blood bank services. Priority must be given to 
preventing infectious diseases, preventing morbidity and mortality of mothers and 
children, preventing acute worsening of chronic conditions by continuing treatment, 
and emergency cases. In conclusion, it is necessary to revise strategies for managing 
health services according to how the epidemic progresses. Also, during the 
pandemic, the Council of Europe, in their guidance to governments on respecting 
human rights, democracy and the rule of law as the relevant standards in the area of 
human rights, in particular emphasizes the right of access to health care and demands 
from governments to pay particular attention to vulnerable groups to enable 
consistency in peoples’ right to equitable access to health care (Respecting 
democracy, rule of law and human rights in the framework of the COVID-19 
sanitary crisis: 2020: 4). 
 
3 Access to Healthcare in Croatia during the COVID-19 pandemic 
 
3.1 Legal framework for regulating the right to access protection of 
 health in Croatia 
 
Although the right to protection of health as one of the subjective human rights is 
not recognized by all countries (Shupitskaya, 2020: 218), the Republic of Croatia has 
accepted it and ratified all European documents protecting that right, and all 
multilateral UN agreements which protect the right to health of certain groups, for 
example, the Convention on the Rights of Persons with Disability as well as 
Convention on the Rights of Children, among others. In the Croatian legal system, 
the right to health is encompassed within economic, social, and cultural rights and 
the Constitution of the Republic of Croatia (hereinafter: CRC) guarantees everyone 
the right to protection of health pursuant to law (Article 59 CRC). The CRC also 
enshrines the rights to equality and protection from discrimination based on race, 
color of skin, gender, language, religion, political or other beliefs, national or social 
N. Mišić Radanović: Violations of the Right to Health due to Limited Access to Protection 
of Health During the COVID-19 Pandemic in the Republic of Croatia and Possible Legal 
Implications 
277. 
 
 
origin, property, birth, education, social position, or other characteristics (Article 14 
CRC). Normative regulation of the right to health is contained in health regulations, 
primarily in the Health Care Act (hereinafter: HCA) and in the Patient Rights 
Protection Act (hereinafter: PRPA). The HCA defines healthcare coverage as a 
system of social, group and individual measures, services and activities for the 
preservation and advancement of health, prevention of disease, early detection of 
illness, timely treatment and healthcare, rehabilitation, and palliative care (Article 4 
HCA). Every person is guaranteed the right to obtain the highest possible level of 
health pursuant to provisions in the law which regulate compulsory health insurance. 
Additionally, in emergency situations everyone is obliged to provide first aid to the 
injured or ill person and enable them to receive access to urgent medical assistance 
(Article 5 HCA). Healthcare coverage for the population of the Republic of Croatia 
is also implemented under the principle of accessibility, utilizing a holistic approach 
in the primary protection of health, and as a specialized approach in specialized-
consultative and hospital protection of health (Article 13 HCA). Pursuant to Article 
17 HCA, the principle of a holistic approach to primary protection of health is 
ensured by the implementation of united measures to improve health and prevent 
disease and by treatment, healthcare, rehabilitation, and palliative care.  
 
The PRPA defines a patient as any person, sick or healthy, who seeks or who is 
provided with certain measures or services in the aim of preserving or improving 
health, preventing disease, treatment or healthcare and rehabilitation (Article 1 
PRPA). The principle of accessibility to the protection of patient rights implies equal 
opportunity to protection of health for all patients in the Republic of Croatia (Article 
5 PRPA). The Law on Medical Practice (hereinafter: LMP) prescribes the duties 
owed by doctors to their patients. Among the duties are the duty to implement 
necessary measures of prevention, diagnosis, treatment, that is, rehabilitation of all 
persons for whom s/he is the chosen doctor or who are referred to him/her for 
healthcare. In emergencies3 s/he is obliged to provide help to every sick person 
without delay and is obliged to take on other sick patients according to the level of 
medical priority or according to the waiting list (Article 18 LMP). Achieving the 
highest possible level of health in Croatia is linked to compulsory health insurance, 
which ensures all insured patients’ rights and obligations according to the principles 
 
3 States of emergency are those which because of failure to give medical help, could result in permanent harmful 
consequences to the health (disability) or life of sick person. 
278 MEDICINE, LAW & SOCIETY.   
 
of mutuality, solidarity and equality (Compulsory Health Insurance Act, hereinafter: 
CHIA, Article 3 sec. 2).4 The right to protection of health stemming from Croatia’s 
compulsory health insurance system includes the right to the primary protection of 
health, specialist-consultative protection of health, hospital protection of health and 
the right to medicines (Article 18 sec. 1 CHIA). The stated medical services in the 
form of diagnostic and therapy procedures are ensured under equal conditions for 
all insured persons (Article 19 sec. 1 CHIA). This achieved accessibility, or so-called 
medical basket, encompasses a huge variety of health services. However, an unequal 
allocation of resources stemming from anti-epidemic measures instituted due to the 
pandemic, has formed a barrier to the availability of these services given that the 
largest number of resources (hospital and medical staff) are in central Croatia and its 
metropolis (OECD/European Observatory on Health Systems and Policies, 2019: 
16). Consequently, many Croatians residing in rural areas are, unfortunately, and as 
a practical matter, unable to avail themselves of the full medical basket of services 
they are entitled to. 
 
3.2 Anti-epidemic measures prescribed for primary protection of health 
 and hospitalization in Croatia during the COVID-19 pandemic 
 
The new SARS-CoV-2 corona virus was confirmed for the first time in Croatia 25 
February 2020. Despite the existence of a normative framework for regulating access 
to protection of health, there was no appropriate legal framework in existence for 
preventing the spread of this kind of infectious disease. Therefore, immediately, 
normatively greater powers were given to the Civil Protection Headquarters of the 
Republic of Croatia (hereinafter: Headquarters) for reaching decisions and directions 
to protect the life and health of citizens, the environment and so on. The 
Headquarters makes decisions in cooperation with both the Ministry of Health 
(hereinafter: MH) and the Croatian Institute of Public Health, under direct 
government supervision. The Headquarters reaches decisions according to the 
principles of effectiveness and rationality so that it can constitutionally guarantee 
that the rights and freedoms if its citizens at every moment only be limited as much 
as is necessary and appropriate to the nature of the need for limitation thereof. 
(Interpellation of the Republic of Croatia's government's work, 2020: 5). At the very 
 
4 Overall population is given universal protection of health coverage and there is no possibility to exit the system of 
permanent health insurance (OECD/European Observatory on Health Systems and Policies, 2019: 9). 
N. Mišić Radanović: Violations of the Right to Health due to Limited Access to Protection 
of Health During the COVID-19 Pandemic in the Republic of Croatia and Possible Legal 
Implications 
279. 
 
 
beginning of the declaration of the epidemic in the Republic of Croatia (11 March 
2020), the Crisis Committee MH5 instituted Instructions for action in providing protection 
of health in primary protection of health and out of hospital specialist-consultative protection of 
health in order to prevent the spread of COVID-19 disease (hereinafter: Instructions).6 The 
Instructions stipulate the maximum possible reduction of patient presence in 
surgeries and the performance of only urgent and unpostponable check-ups and 
procedures for the duration of the pandemic. In order to reduce postponable or 
unnecessary surgery visits, and to create the possibility of issuing referrals and patient 
advice from home, the Instructions recommended that telecommunication with 
patients be improved and increased via telecommunication channels or other forms 
of communication with patients (landline, mobile phone, SMS, videoconferencing, 
e-mail and so on). In the area of family medicine, the Instructions recommended 
that for all palliative and chronic patients, treatment be given at home or in aged care 
facilities via increased home visits by family doctors, healthcare, and physical therapy 
at home via mobile palliative team visits. The Instructions also recommended that 
the number of in-person visits with chronic patients not suffering from any acute 
health symptoms be reduced via patient supervision utilizing telephone or other 
forms of communication. The Instructions pointed out the possibility of using the 
issuing A5 referrals7 for consultation with doctors in the hospital system, without 
patient attendance. Additionally, the Instructions recommended that physical 
therapy services be postponed while gynecological procedures, including checkups 
for pregnant women, and for women with oncological diseases, should continue for 
the duration of the epidemic in line with the professional assessments of the 
gynecologist. Also, the same general measures to prevent the spread of infection 
were instructed for the activities of occupational and sports medicine, palliative care, 
and for the patronage activity. The organization of additional, specifically separate 
surgeries for examining patients suspected of coronavirus infection, were ordered to 
be opened 24 hours around the clock. All healthcare workers in the network of 
 
5 Crisis Committee of MH manages and coordinates the work of health institutions and private health workers in 
crisis situations (Article 196 of HCA). 
6 Immediately before that the Minister of Health passed the Decision on Measures of Mobilization, organization 
and allocation of work and hours of work, change of place and conditions of work of health institutions and their 
staff and private health workers in the public health service network and the use of medical-technological equipment 
and other means. 
7 Novelties in the Croatian health system are a special kind of referral with which the patient’s state of health via the 
internet appointments are made with family doctor and specialist. In that way, if not necessary, the patient doesn’t 
need to go to the hospital, and wait for specialist tests. 
280 MEDICINE, LAW & SOCIETY.   
 
public health services were obliged to participate.8 Taking into consideration the 
reduced scope of the work of hospital institutions and hospital capacity which were 
freed up when needed for the hospitalization of coronavirus infected patients, the 
Instructions conclusively recommended that only life-endangered patients, patients 
suffering from unpostponable health conditions and oncology patients be sent for 
check-ups or hospitalization. 
 
Concerning hospital treatment of persons not infected with COVID-19, but that 
were nevertheless a priority either because of urgent and unpostponable medical care 
needs or because they were oncology patients, an adaptation of hospital capacity 
according to patient demands (i.e., triage system) was carried out. The availability of 
health workers was achieved by temporarily allocating them from their parent health 
institution to health institutions in need (Interpellation on government activity, 2020: 
9, hereinafter: Interpellation). Also, a reorganization of hospital institutions was 
carried out in order to treat patients infected with COVID-19, while still maintaining 
optimal hospital capacity in other vital areas, particularly in treating cancer and 
cardiovascular diseases as the most common causes of mortal illness in the Croatian 
population. After the so-called lock down (March and April 2020), regular hospital 
activity slowly returned. Priority was given to reestablishing new appointments for 
those patients who had appointments cancelled and for setting appointment for 
those patients on waiting lists, activating all areas of hospital services, and carrying 
out urgent and unpostponable interventions (Interpellation, 2020: 12). However, in 
the face of the so-called second wave of the pandemic, the MH on 26 October 2020, 
instructed hospital health institutions on the need to reduce underused capacities 
and activities in specialist-consultative activities while continuing to organize care 
for priority groups, in particular oncology patients. Accordingly, Clinical Hospital 
Dubrava was the primary respiratory-intensive care center for the City of Zagreb, 
while the rest of the hospital resources were employed for treating patients not 
infected with the Coronavirus. However, the MH on 2 November 2020, ordered 
that Clinical Hospital Dubrava ensure (temporarily) only health care for COVID-19- 
infected persons and that patients who had appointments for specialist-consultative 
medical examinations and hospital treatment be sent to their chosen general 
practitioner primary healthcare provider (hereinafter: GP) for further appropriate 
 
8 It is the obligation of all health workers to participate in preventing and combatting infectious disease (Article 64 
HCA). 
N. Mišić Radanović: Violations of the Right to Health due to Limited Access to Protection 
of Health During the COVID-19 Pandemic in the Republic of Croatia and Possible Legal 
Implications 
281. 
 
 
treatment, and that medical examinations and treatment be arranged in other medical 
institutions in Zagreb (Interpellation, 2020: 14). At the same time, the MH in 
November 2020, enacted the Decision on establishment and activity of the Call Center to 
ensure protection of health for oncological patients in hospital health institutions 
during the COVID-19 pandemic.9 
 
3.3 Possible harmful health consequences for non-Covid patients due to 
 limited access to protection of health during the COVID-19 pandemic 
 
Even though it is generally accepted that the priority is treating COVID-19 infected 
patients, in all countries the issue has been raised that, at the same time, it is 
important to ensure that other non-infected persons suffering from other serious 
health conditions receive appropriate treatment. Consider the situation in the United 
Kingdom for example. Because of the non-obligatory nature of the National Health 
Service10 recommendations in the United Kingdom, patients at high risk of cancer 
were faced with delayed treatment. Because of the redistribution of health workers, 
the UK’s national cancer prevention program, which annually uncovered 
approximately five percent of all diagnosed cancers, was halted (Jones et al. 2020: 
748). The number of high-risk patients whom doctors referred for diagnosis of 
possible cancer fell by approximately 70 percent in Scotland and Northern Ireland 
(Montel et al. 2020: 230). Research is already pointing that the inaccessibility to basic 
diagnostic tests during the pandemic will result in a large number of additional 
mortalities from cancers of the breast, intestine, lung and esophagus over a period 
of one to five years and will, regardless of diagnostic tests diagnosing 40 percent of 
patients with cancer, necessitate the need for urgent measures to abate the indirect 
effects of the COVID-19 pandemic on patients with cancer (Maringe et al., 2020: 
1033). In the Netherlands, which provides its citizens with general access to basic 
health services via a primary care doctor serving as the „gatekeeper” to secondary 
 
9 Article 197 HCA gives the Minister of Health powers to in cases of extraordinary circumstances, catastrophes and 
epidemics of greater scope to undertake measures and activities such as mobilization, organization and allocation 
of work and hours of work, change to the place and conditions of work of certain health institutions and their 
workers and of private health workers in the network of public health services for the duration of such 
circumstances. 
10 The state has delegated its responsibility to ensure everyone access to health services and institutions to local 
health funds, which has created inequity in accessing health coverage among regions (Montel et al. 2020: 230). 
282 MEDICINE, LAW & SOCIETY.   
 
care, data reveal a significant fall in the number of diagnosed cancers11 compared to 
the pre-COVID-19 pandemic period (see Dinmohamed et al., 2020: 750). 
Furthermore, a global problem is limited access to the protection of women's health. 
In response to COVID-19, in March 2020, WHO issued interim guidance for 
maintaining essential services during an outbreak, which included advice to prioritize 
services related to reproductive health and to make efforts to avert maternal and 
child mortality and morbidity. But COVID-19 has a “devastating” effect on women 
and girls (Cousins, 2020: 301).12 One of the biggest challenges facing women under 
the present COVID-19 lockdown is their inability to seek medical advice from a 
primary healthcare practitioner (Mobasheri, 2021). 
 
The situation is almost identical in Croatia, where disruptions to primary and 
secondary healthcare coverage will certainly have medium- to long-term 
consequences both in terms of worsening certain chronic health conditions and 
delaying the diagnosis of new illnesses because diagnostic-therapy procedures were 
either delayed or postponed. According to data from the reports of the Ombudsman 
in 2020 (hereinafter: Ombudsman's report), due to the priority of implementing anti-
epidemic measures, patient visits to healthcare institutions have been reduced and 
only emergency and unpostponable medical examinations and procedures have been 
carried out. Although doctors have opened other channels of communication with 
patients (for example, e-mail, mobile phone, SMS messages), accessibility continues 
to be reduced and it was often impossible to talk with a doctor. Citizens had greatly 
reduced access to healthcare services which were not related to COVID, so 
considerably fewer people used healthcare coverage from family doctors during 
April 2020 than in April 2019.13 Comparing the first nine months of 2019 and 2020, 
the number of patient visits to family doctors decreased by 21.49 percent 
(Ombudsman's report, 2021: 27). The epidemic and the resulting mobilization of the 
healthcare system in March and April 2020 have caused significant disruptions and 
problems because a large number of medical examinations, diagnostic procedures 
 
11 In the time of closing systems and reorganizing health systems in Holland 35 percent fewer tumors were diagnosed 
and 80 percent fewer skin tumors (Vrdoljak, 2020). 
12 United Nations Population Fund (UNFPA) predicts there could be up to 7 million unintended pregnancies 
worldwide because of the crisis and losing access to contraception, with potentially thousands of deaths from unsafe 
abortions and complicated births due to inadequate access to emergency care. Also, Cousins added that “the 
skyrocketing of gender-based violence”, which is a “pandemic within a pandemic “(Cousins, 2020). 
13 And the number of contacts with health cover was significantly reduced during March, April and May in 2020 
compared to the same period in 2019 (Korištenje primarne zdravstvene zaštite u vrijeme epidemije COVID-19 u 
Republici Hrvatskoj, 2020). 
N. Mišić Radanović: Violations of the Right to Health due to Limited Access to Protection 
of Health During the COVID-19 Pandemic in the Republic of Croatia and Possible Legal 
Implications 
283. 
 
 
and operations were cancelled or postponed. As a consequence of instructing the 
hospital system to increase capacities for isolation and intensive care treatment of 
COVID patients and for urgent non-COVID patients from March to May 2020, the 
number of chronically ill patients whose checkups and therapy were postponed, as 
well as those whose already scheduled appointment dates for first specialist medical 
examinations and operations were cancelled, has increased.14 Given that certain 
hospitals in October 2020 were transformed primarily into places for treating 
COVID-19 patients, all persons with appointments for specialist medical 
examinations or hospital treatment unrelated to COVID-19, were transferred to 
other hospitals or referred to their chosen GP. However, with their chosen GP, they 
could only get new appointment times in other hospitals, so they waited again as 
they did the first time they were placed on the waiting list. Also, in Croatia in 2020, 
the number of first specialist appointments was drastically reduced (55,007 in 
comparison to 129,356 in 2019, that is, by 42 percent), as well as for check-ups 
(280,599 compared to 515,590 in 2019 that is, by 54.4 percent). Despite this, the 
average daily wait remained the same for both types of medical examinations, which 
led to a significant increase on the waiting lists (Ombudsman's report, 2021: 30). In 
Croatia in April 2021, the MH and Coordinator of Croatian Family Medicine 
(KoHOM) polemicized on the „great dysfunctionality “in primary protection of 
health by „directing non-urgent cases to Emergency Hospital Departments.“ The 
MH warned of the overburdening of emergency departments because „patients 
most often came on their own initiative, because their doctors were not available“. 
From the KoHOM it was shown that this was due to the fact that certain patients 
wait for months or a year for some diagnostic tests, revealing the fact that family 
doctors in 2020 directed all of 2.8 percent of patients, or two patients weekly, to 
emergency departments.15 
  
 
14 To assist clinicians in reaching difficult decisions which include risk of advancing the disease or complications of 
relevant clinical societies and associations in many countries have issued directions, for example, the 
recommendation that at the height of the pandemic only emergent operations continue, such as perforated or 
actively bleeding cancers while the English NHS recommended hospitals to give preference to patients in need of 
emergency operations in the next 24 to 72 hours (Richard et al., 2020: 2). 
15 Patients themselves go to Emergency Departments because their doctors are not available (Beroš, 2021). 
284 MEDICINE, LAW & SOCIETY.   
 
The situation with oncology patients warrants special discussion. In the last report 
from the five-year-long global report of malignant disease survivors, published in 
the journal entitled The Lancet in March 2018, Croatia, according to the results of 
treatment of malignant diseases, was at the bottom of the list of European countries 
(Kelemenić-Dražin et al., 2020: 299). Oncology is a multidisciplinary profession. 
Consequently, the quality care of patients depends not only upon internal and 
radiation oncologists but also on a range of other activities, which unfortunately 
have been reduced and placed under great strain as a result of the pandemic. Surgery 
functioned for some time only at the level of absolute emergency (Pleština, 2021: 
46). The number of patients treated in medical units of Croatian hospitals due to 
malignant diseases during March and April 2020 was 2,048 less than in the same 
period in 2019.16 Also, the implementation of preventative national programs for 
early detection of cancer of the breast, cervical spine, and large intestine, as leading 
causes of death in Croatia, were temporarily halted. Programs for cancer screening 
stopped, even when they were in place, as there was no appropriate response from 
the general population (Pleština, 2021: 47). In Croatia, an analysis was conducted 
regarding the number of patients that were newly diagnosed as having breast cancer 
during lock down. In the first two weeks of May in 2020, the number of newly 
diagnosed women undergoing biopsy and carcinoma diagnosis was almost 50 
percent less than in the first two weeks in 2019. The possible consequences of late 
tumor diagnosis, as with postponed check-ups, are worse treatment outcomes and 
illness in advanced stages (Vrdoljak, 2020).17 During the pandemic, cancer survivors 
were again lost in transition (Koczwara, 2020). Treatment simply cannot be halted. 
Stopping and/or postponing screening for early detection of cancer sends both the 
public and primary healthcare the message that cancer can wait (Jones et al. 2020: 
748). The dire consequences of this message can be found in the data from the 
Croatian State Department of Statistics. The data shows that in April 2021, 30.7 
percent more people died than in the five-year period (2015-2019) for the same 
month and that the number of dead in the period from March 2020 to April 2021 
increased by 11.7 percent as compared to the five-year period before the epidemic 
 
16 Due to clinical hospital Dubrava in Zagreb being designated as a COVID-19 center, there was a fall in operations, 
dependent on the type of cancer up to 70%. Retrieved from: http://hr.n1info.com/Vijesti/a575707/Udar-
pandemije-na-oboljele-od-raka (15 March 2020). 
17 Referrals in the women's health service in Croatia are most frequently issued for diagnostic tests. 58.3 percent of 
the total number of referrals pertain to referrals to the clinical cytology, medical microbiology and parasitology, and 
the medical biochemistry service (Hrvatski zavod za javno zdravstvo 2020: 16). 
N. Mišić Radanović: Violations of the Right to Health due to Limited Access to Protection 
of Health During the COVID-19 Pandemic in the Republic of Croatia and Possible Legal 
Implications 
285. 
 
 
was declared.18 The spike in the number of mortality cases can be attributed to three 
causes 1) death from coronavirus itself, 2) death caused from non-diagnosed 
coronavirus and 3) death as a consequence of disruptions in the regular activities of 
the healthcare system stemming from the pandemic (Rudež, 2021). 
 
In Croatia, for a variety of objective and subjective reasons, there has been too much 
discrimination in the area of healthcare. The pandemic has had the greatest adverse 
health impact on the lives of people who already were disadvantaged. This primarily 
relates to the most vulnerable – the poor, the elderly, people with disability, the ill, 
the homeless, migrants, persons at risk of social exclusion and others who are 
marginalized in society generally (Štefančić, 2020: 38). Increased flexibility in the 
approach to health coverage, while admittedly benefitting many, also has the 
opposite impact on the marginalized people in society (Jones et al., 2020: 748). 
Consider, for example, the anti-epidemic measure of forbidding accompaniment. 
This measure either prevented or hindered many patients, such as the elderly, 
oncological patients, patients with poor mobility, patients that live at locations 
distant from treatment centers, etc. from access to necessary healthcare. The elderly 
living in poverty have limited access to health-care services due to lack of cyber 
knowledge or because they live in closed spaces such as aged care homes and already 
face aged discrimination (‘ageism’). Many cannot drive, have no one to drive them, 
and often lack public transport. Therefore, they need particular protection of rights 
(Kornfeld-Matte, 2020).19 Forbidding movement out of one's place of residence 
additionally hindered access to healthcare services for the many living in rural areas. 
Doctors in private practice mainly continued their line of business under epidemic 
conditions, but their services were not available to poorer citizens. Under such 
circumstances, some citizens were left without adequate medical coverage, and the 
chronically ill or those whose health requires prompt, regular and timely care were 
particularly vulnerable. For many, if not practically all such patients, proper care can 
only take place in person; on line consultations, even when possible, generally are 
not practical. This situation can be considered as discrimination based on economic 
status in accessing health coverage (Ombudsman's report, 2021: 38). 
 
 
18 Government Department of Statistics of the Republic of Croatia Effects of the COVID-19 disease pandemic on 
social- economic- indicators. 
19 On the discrimination of the elderly during the pandemic see den Exter, 2020. 
286 MEDICINE, LAW & SOCIETY.   
 
4 Legal implications of harmful health consequences due to 
 inaccessibility to protection of health during the COVID-19 
 pandemic-force majeure/ultimate necessity/state of emergency? 
 
Harmful health consequences resulting from the violation of the right to health 
during the COVID-19 pandemic has a bearing upon various forms of liability of 
health workers and/or institutions and government in criminal, compensation, 
disciplinary and administrative law. Under COVID-19 pandemic conditions, all laws 
applicable under normal conditions are still in force (D'Aloja et al., 2020). It has been 
estimated that patients could suffer significant harm in 50 percent of various cases 
because of either postponed or cancelled medical procedures (Montel et al., 2020: 
230). The health care system, during certain periods, was exclusively available only 
for emergency cases for persons not infected with COVID-19. Therefore, the 
impact of the pandemic on the application of law in the sense of its legal qualification 
can certainly be observed with respect to the issue of liability for harmful 
consequences to health. The impossibility of accessing protection of health for 
persons not infected with COVID-19 affects the application of the civil law, both 
with respect to contracts and to liability for harm which could result from the 
pandemic (Barbić, 2021: 9). Also, limiting access to healthcare, either due to its 
complete postponement or its delay, which in turn has deleterious effects on the 
results of medical treatment, raises the possibility of criminal liability on behalf of 
both healthcare workers and/or healthcare institutions. This is the case because the 
right to health in Croatia is also protected by the Criminal Code (hereinafter: CC), 
within the criminal acts against people's health. A serious question then that arises is 
how best to legally deal with the fact that in Croatia in 2020 there were 26.2 percent 
or 338 fewer patients recorded to have undergone surgery for lung or bronchial 
cancer (Drljača, 2021). Another dilemma is how the legal system should deal with 
situations where patients, because of the pandemic and the ensuing limitations and 
restrictions on receiving timely medical care, suffered and will suffer harmful 
consequences because they had not been tested, received a diagnosis, or received 
appropriate therapy or a necessary medical operation. 
  
N. Mišić Radanović: Violations of the Right to Health due to Limited Access to Protection 
of Health During the COVID-19 Pandemic in the Republic of Croatia and Possible Legal 
Implications 
287. 
 
 
The answers to these important questions must be considered in the context of 
certain objective facts. The COVID-19 pandemic represents a huge burden on the 
health system. The dangerous effects of the epidemic on healthcare were also caused 
by the shortage of health workers, health workers that were overloaded and at risk 
of infection, while the wider scale of the epidemic demanded increased engagement 
of the health system to care for patients infected with COVID-19. Even though 
health systems were not completely prepared for this dangerous disease, doctors and 
other health workers were on the front line battling the virus with maximum 
exposure to the risk of infection. Wards and intensive care units were full, with 
overworked and exhausted health workers under extreme stress due to overtime, 
difficult working conditions and constant fear of infection. Work under increased 
physical, psychological and emotional strains of that stress, for some doctors and 
other medical staff, resulted in burnout (British Medical Association-BMA survey 
COVID-19 tracker survey February 2021). In a real sense, all medical workers could 
be considered as victims of the COVID-19 pandemic. According to data from 
FNOMCeO (Federazione Nazionale degli Ordini dei Medici Chirurghi e degli 
Odontoiari), which kept a list of doctors who died during the COVID-19 epidemic, 
from the beginning of the epidemic to 31. 03. 2021, in Italy a total of 358 doctors 
died.20 In Serbia, from March 2020 to 16 March 2021, from the consequences of the 
corona virus, 92 doctors, 12 dentists and two pharmacists or a total of 106 medical 
workers have died. At the same time, 33 in Albania, and two doctors in Croatia, died 
(Anđelković, 2021). 
 
Which harmful consequences can occur as a result of the COVID-19 pandemic in 
public and private law? For example, if fulfillment of contractual obligations is 
rendered impossible, many will certainly point to the doctrines of force majeure, 
ultimate necessity, or extraordinary circumstances. What effect does the COVID-19 
pandemic have on the application of the law on compensation? According to the 
general rules of contractual law, strict liability for damages exists if cumulatively the 
general presumptions of that liability are fulfilled: the subjects of liability for damages 
(tort-feasor and injured party), the tort, damage, causal connection, illegality 
objectively, and in the case of subjective liability for damage, tort-feasor fault 
(Baretić, 2021: 103). In the application of all these presumptions of liability of 
 
20 Accessible: https://portale.fnomceo.it/elenco-dei-medici-caduti-nel-corso-dellepidemia-di-covid-19/ (4 June 
2021). 
288 MEDICINE, LAW & SOCIETY.   
 
physical and legal entities for harm to health, and because of the inability to access 
the protection of health, several difficulties emerge: an increased difficulty to prove 
damages and the causal connection between those damages and the limited access 
to healthcare due to the anti-epidemic measures that were instituted; establishing the 
injured party's contribution to their own damage; and, damage onset as a result of 
force majeure.  
 
Liability for damages in medicine is possible when there is a breach of the rules in 
the medical profession, that is, due to so-called medical error in diagnosis and 
therapy. Most errors in medicine stem from diagnostic procedures, as reaching a 
diagnosis is an extremely important procedure. Doctors have a duty to establish the 
nature of the disease based on the known symptoms. Doctor error can result both 
as a result of an inaccurate diagnosis and also a missed diagnosis. Even though 
diagnosing cancer is a priority in the health system, in the context of the COVID-
19 crisis, preventive screening for early diagnosis was postponed, and the diagnosis 
of cancer on the basis of symptoms became necessary and very important. However, 
for family doctors, the COVID-19 pandemic impacted on all aspects of their 
„normal “work. They had reduced availability of in-office appointments for patients 
and often had to resort to telephone triage and video consultations. Therefore, the 
COVID-19 pandemic negatively impacted the ability to diagnose patients with 
cancer because, for example, the lack of screening and hence the detection and 
identification of such cases (Jones et al., 2020: 748). Telephone or online 
consultations are quite simply insufficient and cannot replace personal consultations 
and in-office procedures (Koczwara, 2020: 1).21 To ensure additional staffing 
capacity, equipment and space for intensive care of COVID-19 infected persons, 
the capacities for cancer operations were reduced. Moreover, the patients themselves 
infected with COVID-19 after hospital admission for an operation reluctantly 
consented. (Richards et al. 2020: 2). 
 
 
21 Shows that the greatest problem for young doctors is that they too often neglect having conversations with their 
patients. A fundamental principle guiding good practices of doctor behavior is that in the process of diagnosis and 
treatment it is critically important for doctors to have direct conversations with the patient and to take his/her 
anamnesis. As opposed to just relying on technology, the patient's history of health with his/her fundamental 
physical tests (inspection, palpitations, percussion etc.) lead to correct diagnosis in 70 percent of cases (Kirch et al., 
1996). 
N. Mišić Radanović: Violations of the Right to Health due to Limited Access to Protection 
of Health During the COVID-19 Pandemic in the Republic of Croatia and Possible Legal 
Implications 
289. 
 
 
In compensation law there is a special category of liability for failing to offer 
emergency care. In short, persons who, without risking danger to themselves, fail to 
provide assistance to someone whose life was in danger, are answerable for the 
damage caused by that omission, if that damage under the circumstances should 
have been predicted.22 Therefore, a civil claim in damages for failure to provide 
emergency treatment exists when a health worker fails to fulfil the legal obligation 
to provide medical assistance in emergency situations. At the same time, this failure 
can also constitute a criminal act, punishable under Article 183 of the CC.23 
 
Can the COVID-19 pandemic in civil, commercial, and administrative law be 
considered as vis maior? It's a notorious fact that the inception of this infectious 
disease is, in fact, an extraordinary event which was difficult to foresee (at least in its 
scope and breadth) and/or prevent and consequently the question arises as to 
whether the damages related to anti-epidemic measures came about from vis maior 
which liberates various actors from liability (in situations where they otherwise 
would be exposed to liability for their actions/inactions) for damage occurred 
(Staničić, 2021: 134). The generally accepted view is that vis maior exonerates 
government from liability for that damage and also from that arising from the 
epidemic as a direct consequence from it - illness, permanent effects from the disease 
and death are really consequences of that force majeure and the State cannot be held 
responsible for that kind of damage (Ibid). However, other forms of damage directly 
linked to the epidemic, but which also occur because of the government's anti-
epidemic measures or the implementation thereof, at least according to Staničić, 
cannot be considered as damage by force majeure and in such cases, at least in 
principle, there is State liability for such damage if government prescribed conditions 
are fulfilled (Ibid.). In the case of State liability for damage occurring from anti-
epidemic measures, certainly the biggest hurdle the claimant faces would be in 
proving causation, namely, that the damage in fact was caused due to illegal and 
incorrect government activities (Staničić, 2021: 146). Also, no general principle exists 
on the basis of which it can be established that the COVID-19 pandemic represents 
a force majeure and justification for the non-fulfillment of contractual obligations 
 
22 Article 1082 sec. 1 pursuant to sec. 2 from Law on Obligations if equity requires it, the court can liberate such a 
person from damages. 
23 Doctor of medicine, doctor of dental medicine or other health worker who without postponement does not offer 
medical help to person in need of such help due to danger of harmful consequences to his/her health or life will be 
sentenced to prison for three years. 
290 MEDICINE, LAW & SOCIETY.   
 
which could lead to liability in damages (Cesarec Nöthig & Štaba, 2020). In the 
Croatian legal system, force majeure is defined in Article 343 of the Law on Obligations 
as “an external, unpredictable, and extraordinary event which cannot be prevented, removed or 
avoided in which case the defendant would be liberated from liability”.24 
 
Criminal law recognizes a concept known as the collision of duties. Simply stated, 
this means fulfilling one duty is only possible by breaching another. If a doctor can 
only help one of several seriously injured persons, is the doctor’s omission towards 
those not given treatment illegal? (Horvatić et al. 2017: 59). Did the omission 
concern a specific situation of necessity related to conflicting duties and force majeure (vis 
maior)? Force majeure is certainly a form of coercion and provides a generally 
recognized foundational, legal basis for excluding criminal liability.25 In Croatia, as a 
fundamental concept of criminal law, absolute force (vis absoluta) excludes the 
existence of free will (Novoselec & Martinović, 2019: 149), while for compulsive 
force (vis compulsiva) or threat which could have been resisted, the principles of effect 
of ultimate necessity are applied (Horvatić et al., 2017: 11). From the provision on 
justifying necessity in German criminal law (§ 34), it can be concluded that, avoiding 
the greater danger legalizes accepting the lesser evil. This means priority treatment 
(i.e., triage) of those most in acute need allows choice and emergency medical 
assistance is the valid criterion for choice (Zimmermann, 2020). Hence, the doctor 
can provide medical assistance firstly to the more seriously injured person while in 
the case of the less seriously injured, there is justifiable necessity for not immediately 
providing medical treatment to that patient. This doctrine therefore excuses liability 
for what otherwise would constitute the criminal act of omission to offer medical 
assistance in emergency situations as set forth in Article 183 of the CC (Novoselec 
& Martinović, 2019: 148). However, in situations involving conflicting duties of the 
same level of medical seriousness, for example, if help must be offered to multiple 
persons suffering medical conditions with comparable degrees of seriousness, the 
 
24 The concept of force majeure in European law can be confirmed by the opinion of independent lawyers Jääskinen 
in the case before the Court of Justice of the EU C-509/11: if there is no special legal definition of force majeure 
in the latest regulations, the condition for recognizing the case of force majeure is that external circumstances to 
which the legal subjects refer have consequences which are so doubtless and unavoidable that the parties to the case 
cannot carry out their obligations. The concept of force majeure must be interpreted as unusual and unpredictable 
circumstances out of control of the mentioned subjects, the consequences of which cannot be avoided despite duty 
of care (Cesarec Nöthig & Štaba, 2020). 
25 So, the Dutch criminal law regulates that the person who is coerced by the force majeure is not responsible for 
the criminal act (Article 40 Criminal Code of Netherlands). Coercion exists when the doctor is faced with conflict 
of duties. 
N. Mišić Radanović: Violations of the Right to Health due to Limited Access to Protection 
of Health During the COVID-19 Pandemic in the Republic of Croatia and Possible Legal 
Implications 
291. 
 
 
opinion to save one person to the exclusion of others prevails and the doctor is free 
to choose (Kurtović Mišić et al., 2021: 429).26 
 
Because of this, should Croatia nevertheless declare a state of emergency because of 
a great natural disaster, i.e., the epidemic, and then would the various medical 
dilemmas as posed above constitute events caused by force majeure (Staničić, 2021: 
135)? The CRC concept of „great natural disasters “is only mentioned in one place 
in the context of the possibility of external limitations of human rights and freedoms 
and does not offer a definition of the very concept, leaving this task for further 
formulation by the legislator (Gardašević, 2021: 37). The Law on Abating and 
Removing Natural Disasters of 2019 does not apply to situations involving 
epidemic/pandemic infectious diseases such as COVID-19 since under this Law this 
is not considered to be a “natural disaster”. However an epidemic could be classified 
as a natural disaster by interpreting the general clause from Article 3 sec. 2 of that 
law as „another occurrence of such scope which depending on local circumstances, causes significant 
disorders to the lives of people in a certain area “. The opposite view holds that considering 
COVID-19 a de facto natural disaster would not be consistent with the valid legislative 
framework (Staničić, 2021: 135). In Judgment U-I-1372/2020 of 14 September 2020 
(with five separate opinions), the Constitutional Court of the Republic of Croatia 
discussed the fact that Croatia is one of the countries that did not declare a state of 
emergency due to the COVID-19 pandemic. 
 
The “hidden victims” of COVID-19 are the many persons who, because for various 
reasons, could not access medical care, had to postpone further treatment, had to 
cancel operations, were screened for cancer in a belated fashion, suffered of will 
suffer in the future, damage to their health. The Croatian judiciary has yet to rule on 
whether the COVID-19 pandemic fits within the scope of the traditional force 
majeure/ultimate necessity doctrines such that these hidden victims will be denied 
claims for damages. Foreign judicatures will soon hold the first hearings on the 
lawsuit commenced by a widow of a skier who is seeking payment of 100,000 Euros 
compensation from the Austrian government for the death of her husband allegedly 
caused by complications from contracting COVID-19 while skiing in Austria.27 In 
 
26 For supralegal necessity see Novoselec & Martinović, 2019: 148. 
27 about the matter concerns lawsuits for damages filed by plaintiffs from Austria and Germany, asserting that the 
Austrian government was too slow to react to the emergence of coronavirus in Ischgl and other ski resorts. More 
292 MEDICINE, LAW & SOCIETY.   
 
theory, there are stances according to which, in cases when governmental powers 
justifiably believe in the existence of an epidemic threat, courts tend to welcome all 
government measures which were not violent, or not instituted in the bad faith, or 
not used as a pretext for discrimination (or not discriminatory per se), even when 
later such measures are confirmed to have been erroneous. Certain healthcare 
workers, members of state and local health bodies and municipalities themselves are 
not responsible for mistaken assessments and the actions taken in light of such 
assessments, so long as they act both in good faith and within the scope of their 
powers (Underhill, 2020: 62). However, judicatures can shape some areas of 
pandemic response such as, for example an effective compensation system for 
medical carelessness, a system of consumer protection or reaction to 
intentional/negligent transmission and spread of infectious diseases (Underhill, 
2020: 63). 
 
5 Conclusion 
 
All Member States of the Council of Europe, in order to protect people's lives and 
health, undertook either the same or similar anti-epidemic measures, which were 
only differentiated by their scope and intensity. Organizing access to protection of 
health in the Republic of Croatia during the COVID-19 pandemic was also 
harmonized with WHO directions and key actions in the strategy of managing health 
resources under pandemic conditions: creating a list of basic health services, those 
which can be postponed or re-directed, reducing and limiting the number of face-
to-face meetings with those offering these health services, repurposing health 
institutions, reallocating health staff capacity, forming services for acute care in 
certain emergency units, and by redirecting the management of chronic illnesses by 
maintaining a medicine supply chain. Even though it is indisputable that the 
possibility of accessing protection of health for uninfected persons directly depends 
on the duration of the epidemic, that is, on the increase of those infected with 
COVID-19, nevertheless, even under these difficult pandemic conditions, the State 
remains obliged to ensure its citizens their rights to the availability and quality of 
health services. The limitations and restrictions that the Croatian government has 
 
than 6.000 people from 45 countries confirmed that they became infected at winter resorts, mostly in Ischgl, where 
tourists continued to ski and party while the coronavirus was spreading. All lawsuits were collected by the Austrian 
Association of Consumer Rights VSV. Lawsuits included various consequences of infection, from death to 
permanent damage to health. Source: Jutarnji list dated 4 May 2021. 
N. Mišić Radanović: Violations of the Right to Health due to Limited Access to Protection 
of Health During the COVID-19 Pandemic in the Republic of Croatia and Possible Legal 
Implications 
293. 
 
 
placed on access to protection of health during the COVID-19 pandemic largely 
mirror those imposed by governments of other countries. We may also conclude 
that Croatia has not entirely suspended the right to protection of health, although it 
has significantly limited the right in order to ensure both the sustainable and quality 
functioning of the health system. However, the key is to strike an appropriate 
balance between not overburdening the Croatian health system as a whole (to the 
ultimate detriment of all) while at the same time ensuring the continuity of the 
functioning of the health system in treating illnesses other than those stemming from 
COVID-19.  
 
Unfortunately, due to breaches in this continuity resulting from the COVID-19 
pandemic, negative effects are unavoidable and will impact uninfected persons who 
already are or will become sick with other serious illnesses (primarily cancer, 
diabetes, chronic respiratory and cardiovascular disease). Much medical research has 
already confirmed that an increase in the number of ill, as well as in the number of 
deaths due to cancer and other serious illnesses, which could have been detected 
earlier, is to be expected. Can both current and future negative health outcomes be 
minimized by better management of pandemic crisis policy? Can continuity, despite 
reductions in resources, be ensured through the establishment of a regime to treat 
key chronic illnesses? In addition to these admittedly difficult questions, a special 
problem rests with the discriminatory effect that certain anti-epidemic measures has 
on the already-marginalized members of the society; the elderly, the poor, the 
homebound, the chronically ill, those residing in rural areas, etc. The reality is that 
such citizens do not have equal quality and accessibility of protection of health in 
ordinary times. The unfortunate fact is that delivery of healthcare to citizens is not 
always symmetric. Anti-epidemic measures enacted by governments only serve to 
heighten these problems, so that adequate (even basic) healthcare becomes even 
more difficult to access; that is, more asymmetrical than in normal times.  
 
A part of both the general and professional public still believe that the adopted 
measures were disproportional and that basic human rights were unnecessarily 
infringed upon. Many such persons filed constitutional lawsuits. Regardless of the 
fact that the Constitutional Court of the Republic of Croatia dismissed all of them, 
the public has issued a clarion call to the Croatian government that certain legislative 
amendments and other actions should be made so as to be better prepared for similar 
294 MEDICINE, LAW & SOCIETY.   
 
crises that will occur in the future. The institutional model of combatting the 
pandemic sparked in Croatia a range of forms of resistance in opposition to the 
legitimacy and diversity of anti-epidemic measures, the legitimacy of the very 
Headquarters itself and its framework of powers, the necessity of declaring state of 
emergency and so on.  
 
After more than a year since the beginning of the pandemic, initial unknowns about 
the virus and non-existence of medicines and vaccines for COVID-19, it is time to 
propose certain improvements. The duration and harmful consequences of the 
pandemic give justifiable cause for solutions de lege ferenda which could in future times 
help prevent limiting the right to access to medical protection. From today's 
perspective, it can be concluded that the overall organization of the health system 
could be better, because that organization was subject to numerous regulations, 
decisions, and recommendations of various bodies of executive power. Also, 
measures limiting access to medical protection, for example, epidemiological 
measures of self-isolation, must at every moment be proportionate to the dangers to 
health and adapt to the current epidemiological situation, particularly in situations in 
which there are tests for the disease or infection as milder measures. It is not only 
reasonable but logical that the standard assessments of proportionality limiting 
human rights and freedoms in the second, third or further ‘wave’ of the pandemic 
were stricter than at the beginning of the pandemic, especially because vaccines did 
not exist at the outset of the crisis and because treatments for those infected also 
were sparce. Therefore, attention should be given to the legislative regulation of 
criteria and the way the epidemiologic measure of self-isolation is enforced, because, 
apart from prohibiting freedom of movement, it also unjustifiably denied the right 
to legal protection before independent courts. In the Republic of Croatia, there are 
currently various and often contradictory legal and sublegal regulations which 
regulate the area of combatting the spread of the infectious coronavirus. Legislative 
determination of limiting fundamental human rights, including the right to health, is 
necessary. Given that freedoms and rights can only be limited by law in order to 
protect the freedom, rights and health of others, it would be necessary to clearly and 
precisely dissolve the existing clash (antinomy) of regulations of powers of various 
government and public bodies and the constituents and supervision of the work of 
the Headquarters. The government of the Republic of Croatia has a Scientific 
Council as its advisory body, but the work of this council could be more transparent. 
N. Mišić Radanović: Violations of the Right to Health due to Limited Access to Protection 
of Health During the COVID-19 Pandemic in the Republic of Croatia and Possible Legal 
Implications 
295. 
 
 
In order to reduce the harmful effects of not having access to medical treatment, the 
government should in the future recognize the right to welfare payments for not 
only self-employed workers affected by the measures, but also at least for those at 
risk and vulnerable/marginalized groups for example, the elderly and oncological 
patients, as compensation for obtaining medication and medical examinations and 
checkups privately. Given that all persons contribute to the compulsory medical 
insurance scheme, in the long term those rights should be regulated by law. 
Furthermore, although the CC enables the legislator to legally limit certain freedoms 
and rights in order to protect health, even without explicitly declaring a state of 
emergency, one could consider constitutional changes in the form of more precisely 
defining the application of Articles 16 and 17, that is, clarifying the criteria for those 
circumstances that warrant activation of a state of emergency.  
 
Finally, the legal implications of violating the right to health due to inaccessibility or 
limited access to health protection, and which resulted in harmful consequences to 
people's health or in their death, is yet to be the subject of discussion in legal theory 
and court practice. 
 
 
Legislation, Acts, Regulations or Court Decisions 
 
Charter of Fundamental Rights of the European Union: 2012/C 326/02 Retrieved from: 
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012 (8 April 
2021). 
Convention for the Protection of Human Rights and Dignity of the Human Being with regard to 
the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, 
Council of Europe (Oviedo Convention), NN 13/2003. 
Criminal Code of Netherlands. Retrieved from:  
 https://www.legislationline.org/download/id/6415/file (8 June 2021). 
ECHR, Jurica v. Croatia, app. no. 30376/13. 
European Commission, European Semester Thematic Factsheet, Health systems, (2017), retrieved 
from:  
 https://ec.europa.eu/info/sites/info/files/file_import/european-semester_thematic-
factsheet_health-systems (8 April 2021) 
General Comment No. 14: The Right to the Highest Attainable Standard of Health (UN Doc. 
E/C12/2000/4 (2000), paras. 43-44. Retrieved from:  
 https://www.refworld.org/pdfid/4538838d0.pdf (8 April 2021). 
Interpelacija o radu Vlade Republike Hrvatske u vezi s pripremom zdravstvenog sustava Republike 
Hrvatske na posebne okolnosti uzrokovane korona virusom (2020), retrieved from: 
https://vlada.gov.hr/sjednice/27-sjednica-vlade-republike-hrvatske-30995/30995 (18 May 
2021). 
296 MEDICINE, LAW & SOCIETY.   
 
Izvješće pučke pravobraniteljice za 2020 (Ombudsman's report) (2021), Zagreb, retrieved from: 
https://www.ombudsman.hr/hr/download/izvjesce-pucke-pravobraniteljice-za-2020-
godinu/ (18 May 2021). 
Kazneni zakon (Criminal Code): NN 125/11, 144/12, 56/15, 61/15, 101/17, 118/18, 126/19 
Korištenje primarne zdravstvene zaštite u vrijeme epidemije COVID-19 u Republici Hrvatskoj 
(2020), retrieved from: https://www.hzjz.hr/sluzba-javno-zdravstvo/ (18 May 2021). 
Kornfeld-Matte, R. “Unacceptable”- UN expert urges better protection of older persons facing the 
highest risk of the COVID-19 pandemic, retrieved from: 
https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=25748 (9 
May 2021). 
OECD/European Observatory on Health Systems and Policies (2019) Hrvatska: pregled stanja 
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