Decision U.no.166/2012

U.no.166/2012

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 24 April 2013, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. Article 6 paragraphs 3 and 4, Article 7 paragraph 1 in the part: “to each document or submission”, Article 7 paragraph 2 in the part: “to each document or submission” and Article 7 paragraph 3 of the Law on Attorney’ Stamps (“Official Gazette of the Republic of Macedonia”, no.84/2012) SHALL BE REPEALED.

2. The Resolution for suspension of the execution of the individual acts or actions taken on the basis of the Articles from the Law noted in item 1 of the present Decision SHALL BE PUT OUT OF EFFECT.

3. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

4. Upon the initiatives submitted by Stamen Filipov from Skopje, Dimitrija Atanasovski from Skopje, the Bar of the Republic of Macedonia – Skopje, as well as 15 initiatives by a number of groups of attorneys in the Republic of Macedonia and by individual attorneys, with its Resolution U.br.166/2012 dated 20 February 2013 the Constitutional Court of the Republic of Macedonia instigated proceedings for appraising the constitutionality and legality of the Articles of the Law noted in item 1 of the present Decision. The proceeding was initiated as there was a reasonable question raised before the Court with regard to their accordance with the Constitution of the Republic of Macedonia.

5. At its session the Court found that Article 6 paragraphs 3 and 4 of the Law envisage that a fee is paid for printing, issuing, transporting and keeping attorneys’ stamps, which is borne by the attorney. The sum of the fee referred to in paragraph 3 of this Article is defined according to the real costs incurred for printing, issuing, transporting and keeping attorneys’ stamps.

Under Article 7 paragraph 1 of the Law, the attorney is required to attach the attorney’s stamp to each document or submission for which according to the tariff a reward is envisaged in the amounts referred to in Article 2 paragraph 1 of this Law.

Article 7 paragraph 2 of the same Law stipulates that the attorney is required to attach the contract referred to in Article 2 paragraph 2 of this law to each document or submission on which attorney’s stamp is not attached, if the payment of the reward is above the minimum amounts set forth with the tariff, that is, where the payment is made through a holder of payment operations.

Pursuant to Article 7 paragraph 3 of the Law, the document or submission which is made by the attorney and does not have an attorney’s stamp, has an attorney’s stamp in a smaller amount than the one set forth with the tariff, or does not have a contract attached pursuant to paragraph 2 of this Article, shall be considered to be irregular and shall be dismissed by the recipient.

6. The rule of law and freedom of market and entrepreneurship are the fundamental values of the constitutional order of the Republic of Macedonia, in the sense of Article 8 paragraph 1 lines 3 and 7 of the Constitution.

Article 9 of the Constitution of the Republic of Macedonia stipulates that the citizens of the Republic of Macedonia are equal in their freedoms and rights irrespective of their sex, race, colour of skin, national and social origin, political and religious affiliation, property and social status. All citizens are equal before the Constitution and law.

Article 33 of the Constitution, which is integrated into Chapter II of the Constitution, under the heading: “Basic freedoms and rights of the individual and citizen”, item 3, with a subheading: “Economic, social and cultural rights”, envisages that everyone is obliged to pay tax and other public contributions, as well as to share in the discharge of public expenditure in a manner defined by law.

Pursuant to Article 51 of the Constitution, in the Republic of Macedonia laws shall be in accordance with the Constitution and all other regulations in accordance with the Constitution and law. Everyone is obliged to observe the Constitution and the laws.

Under Article 53 of the Constitution, attorneyship is an autonomous and independent public service providing legal assistance and carrying out public mandates in accordance with the law.

From the stated constitutional provisions it arises that the rule of law is a fundamental value of the constitutional order of the Republic of Macedonia which is realised in a manner that laws must be in accordance with the Constitution and all other regulations with the Constitution and laws, whereby each subject is obliged to observe the Constitution and laws, and at the same time an economic obligation for everyone is the payment of tax and other public contributions and the share in the discharge of public expenditure in a manner defined by law.

From the content in Article 53 of the Constitution it arises that attorneyship is a public service providing legal assistance, whereby this public service is autonomous and independent and carries out public mandates entrusted to it by law.

Article 2 of the Law on Attorneyship (“Official Gazette of the Republic of Macedonia”, nos.59/2002, 60/2006, 29/2007, 106/2008 and 135/2011) defines attorneyship as an autonomous and independent public service which provides and renders only legal assistance pursuant to this and other law (paragraph 1). Attorneys carry out public mandates in accordance with this and other laws (paragraph 2).

Under Article 5 of the Law, the autonomy and independence of attorneyship as a public service is exercised by means of free and independent performance of the activity of attorneys, free choice of an attorney, organisation of the attorneys in the Bar and its financing, autonomous adoption of acts for the work of the Bar of the Republic of Macedonia and its bodies and registration and removal from the Directory of Attorneys, Directory of Attorney Expert Associates, Directory of Attorney Trainees and adoption of a Code of Ethics of Attorneys.

Article 6 of this Law stipulates that the legal activity is performed exclusively by attorneys who have taken an oath and have been registered in the Directory of the Bar of the Republic of Macedonia (paragraph 1). Attorneys carry out the legal activity as attorneys-individuals and attorneys associated in a law firm (paragraph 2). Attorneys-individuals and law firms are registered in the Directory of Attorneys which is kept in the Bar of the Republic of Macedonia (paragraph 3).

Pursuant to Article 7 of the Law, the attorney-individual carries out his/her legal activity individually (paragraph 1).

Article 8 of this Law stipulates that two or more attorneys may establish a law firm (paragraph 1). The law firm performs the legal activity as an attorney-individual (paragraph 2). The law firm is established by a decision on establishment (paragraph 3). The law firm is registered in the Directory of Law Firms which is kept in the Bar of RM, thus acquiring the status of a legal entity pursuant to this Law (paragraph 5).

7. From the analysis of the content of Article 6 paragraphs 3 and 4 of the Law, and in correlation with the provisions of the Law on Securities, the Court found that the obligation of the attorney to pay the fee for printing, issuing, transporting and keeping the attorney’s stamps, the amount of which is defined according to the real costs incurred for the said activities, is not in accordance with the fundamental value of the constitutional order of the Republic of Macedonia of Article 8 paragraph 1 line 3 of the Constitution, for a reason that the collision of the provisions of the two laws existing in the legal order of the Republic of Macedonia leads to legal uncertainty of the citizens of the Republic of Macedonia, which questions the consistent implementation of the laws in the Republic of Macedonia. From the said arguments the Court found that the contested Article 6 paragraphs 3 and 4 of the Law are in contradiction with the Constitution of the Republic of Macedonia.

Analysing Article 7 paragraphs 1 and 2of the Law, in light of the allegations in the initiative, according to the Court the same in the part: “to each document or submission” is in direct contradiction with the principle of efficiency and cost-effectiveness of the procedure, which is one of the fundamental principles for a trial within a reasonable time, to which our judicial system aspires, and certainly in terms of Article 6 of the European Convention on Human Rights. Namely, the obligation of the attorney to attach the attorney’s stamp to each document or submission for which under the tariff a reward is set forth for the amounts referred to in Article 2 paragraph 2, according to the Court means an unreal presentation of the revenues of the attorney which are a ground for advance payment of personal income tax which does not realise the constitutional basis of the legislator to determine the sources of income of the attorneys-individuals, as the basis for their taxation.

As to Article 7 paragraph 3 of the Law, the Court found that the same as a whole is not in accordance with the provisions of the Constitution which are invoked in the initiatives – Article 8 paragraph 1 line 3, Article 51 and Article 53, due to the following reasons.

From the content of Article 7 paragraph 3 of the Law on Attorneys’ Stamps it arises that it envisages that the recipient dismiss the document or submission made by the attorney if the same do not contain an attorney’s stamp, or if the same are submitted in a lesser amount than the one specified in the tariff or do not contain an attached contract pursuant to paragraph 2 of this Article in the Law.

According to the Court, the said legal determination interferes in the judicial competence, that is, in the course of the procedure being conducted upon certain initial act, which is in contradiction with Amendment XXV to the Constitution.

Amendment XXV to the Constitution stipulates that the types, competence, establishment, abolishment, organisation and composition of the courts, as well as the procedure before them, are regulated by law, which is adopted by a two-third majority vote of the total number of Representatives.

From the analysis of the challenged legal provision in correlation with the content of the constitutional amendment it arises that this conditioning is in contradiction with the principle of the rule of law, and ultimately, with the powers of attorneyship as an autonomous and independent public service to perform public mandates in accordance with the law. Namely, this provision is contrary to Amendment XXV of the Constitution for a reason that the assessment of the irregularity of the document or submission which results in dismissal of the corresponding submission influences the course of the procedure which in the sense of Amendment XXV item 4 of the Constitution is the subject of process laws that are adopted by a two-third majority vote, which is not the case with the challenged Law.

Thus, the contested legal provision in Article 7 paragraph 3 has already been legally regulated in a number of process laws, as it has been done in Article 98 paragraph 8 of the Civil Proceedings Act (for which the Constitutional Court already gave its view with its Resolutions U.br.96/2011 and U.br.216/2011 as being in accordance with the Constitution of the Republic of Macedonia) and in the other laws governing the course of court proceedings.
Given what has been noted, the Court found that the challenged provision of Article 7 paragraph 3 of the Law is not in accordance with the fundamental value of the constitutional order of the Republic of Macedonia – the rule of law under Article 8 paragraph 1 line 3 and Amendment XXV of the Constitution.

8. On the basis of the aforementioned, the Court decided as in item 1 of the present Decision.

9. The Court took the present decision in the following composition: Mr Branko Naumoski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mrs Elena Gosheva, Mr Ismail Dalishta, Mr Nikola Ivanovski, Mr Jovan Josifovski, Mr Sali Murati, Dr Gzime Starova and Mr Vladimir Stojanoski.

U.br.166/2012
24 April 2013-05-27
S k o p j e

PRESIDENT
of the Constitutional Court of the Republic of Macedonia
Mr Branko Naumoski

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