Constitutional placebo: critical review of the Russian Constitutional Court Judgment of 26 September 2024 in the case no.41-P on the right to orphan medicines

Disputes related to the protection of the constitutional right of citizens to medicine supply at the expense of the budget are often the subject of consideration of the courts. However, only in 2024 the Constitutional Court of the Russian Federation for the first time attempted to assess the sufficiency of its provision. In the analysed Judgment, the Constitutional Court concludes that the current normative regulation is insufficient to ensure the rights of citizens to access to medicines and, therefore, contradicts the Constitution of the Russian Federation. However, the very statement of the problem and the justification of the solution proposed by the Constitutional Court are not uncontroversial. The article attempts to critically analyse the Court’s position set out in the Judgment in order to predict the possible risks of implementation in legislation and application of the mechanism proposed by the Court. In particular, using the method of legal modelling, the authors identify the risks associated with the filling of the reserve mechanism, as well as untimely and uneven distribution of funds allocated from the budget. The existence of these risks is due to both the abstractness of the Court’s description of the characteristics of the reserve mechanism and insufficient evidence in favour of the fact that the reserve mechanism is in principle capable of being a solution to the problems identified in the Judgment. The article also provides a brief description of the situations related to the problems identified in the Judgment (for example, the ineffectiveness of judicial remedies for patients with life-threatening illnesses), but unable to be resolved by the mechanism proposed by the Constitutional Court. The authors conclude that the absence of the scope of the right to medicine supply, enshrined in the legislation, does not allow to fully restore the violated constitutional right. Determining the scope of the right to medicine supply within the framework of legal doctrine is an urgent task of subsequent research.