Decision U.no.74/2008

U.no.74/2008

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 10 September 2008, the Constitutional Court of the Republic of Macedonia took the following 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 10 September 2008, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. Article 98 paragraph 2 in the part: “and according to the nature of matters” of the Law on the Courts (“Official Gazette of the Republic of Macedonia”, nos. 58/2006 and 35/2008) IS REPEALED.

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

3. Upon the initiative submitted by Stamen Filipov from Skopje, the Constitutional Court of the Republic of Macedonia with its Resolution U.no.74/2008 of 9 July 2008 instigated proceedings for appraising the constitutionality of Article 98 paragraph 2 in the part: “and according to the nature of matters” of the Law on the Courts (“Official Gazette of the Republic of Macedonia”, nos.58/2006 and 35/2008), as there was a well-founded question raised regarding its harmony with the Constitution.

4. At its session the Court found that Article 98 of the Law on the Courts is systematised in Chapter VII “Court administration”, under the title “Work of the court during strike”. Under paragraph 2 of this article, the court is obliged to work during strike in the procedures which are defined by law to be urgent, that is, for the matters which are necessary under a law and according to the nature of the matters.

5. Pursuant to Article 8 paragraph 1 lines 1 and 3 of the Constitution, the basic freedoms and rights of the individual and citizen, recognised in international law and set down in the Constitution and the rule of law, are the fundamental values of the constitutional order of the Republic of Macedonia.

Under Article 32 paragraph 5 of the Constitution, the exercise of the rights of employees and their position are regulated by law and collective agreements.

Pursuant to Article 38 of the Constitution, the right to strike is guaranteed. The law may restrict the conditions for the exercise of the right to strike in the armed forces, the police and bodies of administration.

Under Article 51 paragraph 1 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.

From the contents of the noted constitutional provisions, it clearly arises that the right to strike is one of the fundamental freedoms and rights of the individual and citizen defined by the Constitution. This right, as one of the basic economic and social rights is constitutionally guaranteed, whereby the Constitution leaves to regulate the manner of exercise of this right by law and a collective agreement, with a view not to question the exercise of the other constitutionally guaranteed freedoms and rights. In this sense, there is no obstacle to regulate by law the manner of exercise of the right to strike in the courts, taking thereby consideration when governing these relations not to question the constitutional guarantee of the exercise of the right to strike and also the other constitutionally guaranteed freedoms and rights.

On the basis of this constitutional determination, the Law on the Courts, which defines the basic principles on the basis of which the courts realise the aims and functions of the judiciary, the organisation and competence of the courts, the election of judges and jury judges, the rights, obligations and immunity of judges and jury judges, the termination and discharge from the office of a judge, the matters from the field of justice administration, the matters from the field of court administration, the court information system, the court professional service, the means for work and the jobs of the court police, also defines the work of the court in a situation of strike (Chapter VII “Court administration”). Pursuant to Article 98 paragraph 1 of this Law, during a strike of the officials in the court the matters in connection with the scheduled hearings and appearances in court, that is, with the open sessions for the taking and delivery of all decisions within the legal time limit are carried out. Pursuant to paragraph 2 of the same article, in the procedures which by law are defined to be urgent, that is, for matters which by law and by the nature of the matters are necessary, the court is obliged to work even during strike.

According to the Court, the establishment of the type and scope of the matters that are performed in the court during strike is in the function of providing the necessary level of the process of work of the court with a view to protecting the community as a whole, and certain subjects, against larger scale detrimental consequences, whereby the right to strike of the officials is not infringed upon therewith, but the manner of exercise of this right is governed.

Accordingly, the determination that during strike urgent and matters that cannot be delayed and are defined by law shall be carried out in the court, does not mean restriction of the right to strike of the officials in the court, as the right to strike cannot be understood as an absolute right the exercise of which may question the exercise of the other constitutionally guaranteed freedoms and rights of the citizens, the exercise of which is also within the competence of the state.

However, according to the Court, the determination that during strike the matters that by their nature are necessary shall be carried out, without more specific legal definition of the same, leave room for arbitrariness by the court in the determination of these matters, which is not allowed by the Constitution, since the conditions under which the right to strike is realised may be governed by law and by collective agreement, but not by a sub-legal act.

Based on what has been noted, the Court has assessed that Article 98 paragraph 2 in the part: “and according to the nature of the matters” of the Law on the Courts is not in accordance with Article 8 paragraph 1 lines 3 and 4, Article 38 and Article 51 of the Constitution.

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

7. The Court took the present decision in the following composition: Dr Trendafil Ivanovski, President of the Court, and the judges: Mr Ismail Darlishta, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Branko Naumoski, Mr Igor Spirovski and Dr Zoran Sulejmanov.

U.no.74/2008
10 September 2008
S k o p j e

Dr Trendafil Ivanovski
PRESIDENT
of the Constitutional Court of the Republic of Macedonia

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