Decision U.no.85/2006

U.no.85/2006

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 13 September 2006, the Constitutional Court of the Republic of Macedonia made the following

DECISION

1. Item 6 of the Decision on the amount of the remuneration of representatives for the use of an automobile in personal possession for official purposes and remuneration of costs for pay toll, adopted by the Commission on Issues of Elections and Appointments of the Assembly of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.51/2006) IS ANNULLED.

2. This Decision generates legal effects from the date of its publication in the »Official Gazette of the Republic of Macedonia«.

3. The Constitutional Court of the Republic of Macedonia with its Resolution U.no.85/2006 of 6 and 12 July 2006, instigated proceedings for the appraisal of the constitutionality of item 6 of the Decision on the amount of the remuneration of representatives for the use of a personally-owned automobile for official purposes and remuneration of costs for pay toll, adopted by the Commission on Issues of Elections and Appointments of the Assembly of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.51/2006).

The proceedings was initiated since there was a well-founded question raised before the Court regarding the concordance of the contested provision with the Constitution of the Republic of Macedonia.

4. At its session the Court found that on 13 April 2006 the Commission for Issues of Elections and Appointments of the Assembly of the Republic of Macedonia made a Decision on the amount of the remuneration of representatives for the use of an automobile in their personal possession for official purposes and remuneration of costs for pay toll, entered under number 14-1650/1.

Under item 1 of the contested decision, representatives in the Assembly of the Republic of Macedonia have the right to remuneration for the use of an automobile in their personal possession for official purposes in the amount of 30% from the selling price of one litre of fuel per kilometre driven for the vehicle they use for the sessions of the Assembly of the Republic of Macedonia and the sessions of the working body of the Assembly of the Republic of Macedonia.

Under item 2 of the Decision, the right of item 1 of this decision belongs to the representatives if they are assigned by the Assembly of the Republic of Macedonia to participate in the work of: delegations, parliamentary groups for cooperation with parliaments of other states, seminars, meetings and conferences.

Pursuant to item 3 of the disputed decision, the persons of items 1 and 2 have the right to remuneration of the costs for paid pay toll at the pay toll points on the public roads in the Republic of Macedonia.

Under item 4 of the Decision, the remuneration of the costs in item 3 is paid in the amount of the submitted official document at the pay toll points on the public roads in the Republic of Macedonia (fiscal bill or official note).

Pursuant to item 5 of the same Decision, the Decision on the amount of the remuneration of the representatives for the use of an automobile they personally possess for official purposes and the remuneration of the costs for transportation of the other elected and appointed persons in the Republic (“Official Gazette of the Republic of Macedonia”, nos. 20/2000, 51/2000 and 104/2000) ceases to be valid with the entry into force of this Decision.

Under item 6 of the same Decision, the Decision enters into force on the date of its adoption, and will be implemented as of 15.03.2006.

Pursuant to item 7 of the Decision, this decision will be published in the “Official Gazette of the Republic of Macedonia”.

5. Under Article 8 paragraph 1 lines 3 and 4 of the Constitution, the rule of law and the division of state powers into legislative, executive and judicial are among the fundamental values of the constitutional order of the Republic of Macedonia.

Under Article 9 of the Constitution, 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 beliefs, property and social status. All citizens are equal before the Constitution and laws.

Under Article 51 of the Constitution, in the Republic of Macedonia laws must be in accordance with the Constitution, while all other regulations in accordance with the Constitution and law. Everyone is obliged to respect the Constitution and the laws.

Under Article 52 paragraph 1 of the Constitution, laws and other regulations are published before they come into force, and under paragraph 4 of the same article laws and other regulations may not have a retroactive effect, except in cases when this is more favourable for the citizens.

Under Article 61 paragraph 2 of the Constitution, the organisation and functioning of the Assembly are regulated by the Constitution and by the Rules of Procedure.

Pursuant to Article 64 paragraph 6 of the Constitution, the representative is entitled to remuneration determined by law.

Pursuant to Article 68 paragraph 2 of the Constitution, in the carrying out of the duties within its sphere of competence, the Assembly adopts decisions, declarations, resolution, recommendations and conclusions.

Pursuant to Article 76 paragraph 1 of the Constitution, the Assembly sets up permanent and temporary working bodies.

The Law on Representatives (“Official Gazette of the Republic of Macedonia” no.84/2005) in addition to the salary and other remunerations of the representatives also defines other personal incomes and remunerations of costs to which representatives are entitled. Thus, Article 31 paragraph 1 of this law stipulates that representatives are entitled to incomes and remuneration of the costs for: transportation to and from work, a meal during working hours (food allowance), the moving from the place of permanent residence into the place where the office of representative is carried out, professional advancement and education, burial costs, daily allowance for official trip in the country, accommodation costs, daily allowance for official trip abroad, remuneration for the use of an automobile in personal possession for official purposes, remuneration for a life away from the family and severance pay when going to retirement.

Pursuant to paragraph 2 of the same article, the conditions and the manner of establishing the amount for the realisation of personal incomes and remuneration of costs, defined by this law, as well as their implementation are prescribed by the Assembly, that is, the competent working body of the Assembly.

In line with Article 114 of the Rules of Procedure of the Assembly of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.60/2002), the Assembly sets up permanent and temporary working bodies. The working bodies consider proposals for the adoption of laws, draft laws, proposed laws and proposals and other general acts adopted by the Assembly, as well as other matters within the competence of the Assembly, and carry out other tasks defined by these Rules of Procedure.

Pursuant to Article 115 paragraph 1 of the Rules of Procedure, the permanent working bodies are set up by a decision of the Assembly, and pursuant to paragraph 3 of the same article the sphere of work and the number of members are defined by the decision on setting up working bodies.

By a Decision on setting up permanent working bodies of the Assembly of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.85/2002), a Commission for Issues of Elections and Appointments is set up as a permanent working body of the Assembly. Item 6 of the Decision defines the number of the members of the Commission as well as its competence, whereby paragraph 2 line 15 stipulates that it is within the competence of the Commission to consider issues that relate to the determination, in line with the regulations, of the amount of the per diem payments, costs for life away from one’s family, remuneration for annual vacation, moving and other costs.

6. From the analysis of Article 31 of the Law on Representatives, it arises that the legislator delineated the personal incomes and remunerations of costs to which the representatives are entitled, as well as that is defined that the Assembly, that is the competent working body of the Assembly, in the function of operationalisation of the provision, is authorised to regulate the conditions and manner for determination of the amount for realisation of personal incomes of representatives and remunerations for costs defined by this law.

Taking into consideration the noted constitutional and legal regulation, the Rules of Procedure of the Assembly of the Republic of Macedonia and the Decision on setting up permanent working bodies of the Assembly of the Republic of Macedonia, the Court found that the Commission for Issues of Elections and Appointments, being a permanent working body of the Assembly competent to determine the amount of the remuneration of costs which in line with the regulations are recognised to the representatives, is a competent body to adopt the decision contested.

Therefore, the Court assessed as unfounded the statements in the initiative according to which the Commission did not have a constitutional and procedural competence to adopt the contested decision. The sphere of work of the Commission is defined by the Decision on setting up permanent working bodies of the Assembly of the Republic of Macedonia, and does not derive from the name of the Commission, as a result of which the statements in the initiative that because of the name of the Commission the same was not competent to make the Decision are not founded.

Hence, the Court held that the statements in the initiative according to which the disputed decision is in breach of the principle of the rule of law as defined in Article 8 paragraph 1 line 3 of the Constitution, as well as Articles 51, 61 paragraph 2 and 68 paragraph 2 of the Constitution are not founded.

7. The right of the representatives to remuneration for the use of an automobile in their personal possession for official purposes and the amount of the remuneration are defined by the Law on Representatives. The challenged decision works out the conditions for the realisation of this right, that is, specifies the cases in which it is considered that the vehicle is used for official purposes, and those are the cases when the representatives use the vehicle to come to a session of the Assembly or a working body of the Assembly, and in case they are assigned by the Assembly to take part in the work of delegations, parliamentary groups for cooperation with the parliaments of other states, seminars, meetings and conferences. The Court found that in this way, in line with Article 31 paragraph 2 of the Law on Representatives, the legal provision stipulating the noted right is operationalised, whereby the principle of the rule of law defined in Article 8 paragraph 1 line 3 of the Constitution is not violated.

8. The Law on Changing the Law on Public Roads (“Official Gazette of the Republic of Macedonia”, nos. 31/2006 and 33/2006) defines that the following vehicles are exempted from paying remuneration for the use of a highway or main road, its section or facility on the road (highway toll): vehicles under police escort; evidently designated vehicles of the Army of the Republic of Macedonia, the police, emergency medical squads, the Red Cross of the Republic of Macedonia, the fire department and burial vehicles and vehicles of persons suffering from dystrophy, multiplex sclerosis, cerebral paralysis, paraplegia, hemiplegia, quadriplegia, child paralysis (poliomyelitis), persons receiving treatment due to kidney malfunction and persons with an amputated arm or leg with recognised corporal damage over 80%, determined by an act of the competent commission in the Pension and Disability Insurance Fund of Macedonia.

The legal regulation that was in force until the adoption of these changes in the Law on Changing the Law on Public Roads (Article 109 of the Law on Public Roads – “Official Gazette of the Republic of Macedonia”, nos. 26/1996, 40/1999, 96/2000, 29/2002 and 68/2004) exempted from paying remuneration for the use of a highway or main road, its section or facility on the road (highway toll) also the vehicles of the Assembly of the Republic of Macedonia and of the assemblies of local self-government units, specially designated.

From the analysis of the noted legal regulation from the aspect of the statements in the initiative, according to the Court it results that items 3 and 4 of the contested decision are in accordance with the latest changes in the Law on Public Roads. Namely, with these legal changes the vehicles of the Assembly are no longer exempted from payment of remuneration for highway toll, which means that at the pay toll points on the public roads in the Republic of Macedonia payment is made for the vehicles of the Assembly of the Republic of Macedonia and for the vehicles that are in personal possession but the representatives use for official purposes when they are not in a position to use official vehicles of the Assembly.

Considering that it refers to vehicles that are used for official purposes for a body of the state power, the costs for the paid pay toll are costs of the body for the needs of which the trip was made. In this sense, the Court found that the costs for the paid pay toll at the pay toll points on the public roads in the Republic of Macedonia, verified with an official document – a fiscal bill or an official note -, in line with item 4 of the contested decision, are material expenses connected with the carrying out of the function of the Assembly and are to be borne by the Assembly of the Republic of Macedonia, and are not personal expenses of the representatives, as a result of which there is a ground for the representatives to receive remuneration for the costs they paid for the vehicle.

For the reasons noted, the Court held that the statements in the initiative according to which items 3 and 4 of the contested decision originally define certain right of the representatives thereby violating Article 8 paragraph 1 line 3, Article 9 and Article 51 of the Constitution of the Republic of Macedonia are unfounded.

9. Given that item 6 of the contested decision defines that the Decision enters into force on the day of its adoption (13 April 2006), and will be implemented as of 15 March 2006, prescribing its implementation prior to publishing it in the “Official Gazette of the Republic of Macedonia”, the Court judged that item 6 of the Decision is not in accordance with Article 52 paragraph 1 of the Constitution.

In addition, according to the Court this case does not concern a retroactive effect as to what is more favourable for the citizens as defined in Article 52 paragraph 4 of the Constitution, but a retroactive effect as to more favourable for concretely specified smaller number of persons – representatives -, as a result of which items 6 of the Decision is not in accordance with this constitutional provision either.

As pursuant to item 5 of the Decision, the Decision on the amount of the remuneration of the representatives for the use of an automobile they personally possess for official purposes and the remuneration of the costs for transportation of the other elected and appointed persons in the Republic ceases to be valid on the day this Decision enters into force, and pursuant to item 6 of the challenged decision the Decision has a retroactive effect, it arises that at certain period of time (from the implementation of the contested decision until the termination of validity of the previous decision) there are two decisions of the same body legally in force that govern same rights of the representatives, which questions the principle of the rule of law. Consequently, the Court judged that item 6 of the decision is not in harmony with Article 8 paragraph 1 line 3 of the Constitution either.

10. On the basis of what has been stated, the Court has decided as in item 1 of this Decision.

11. The Court has passed this decision in the following composition: the President of the Court Mr Mahmut Jusufi, and the judges: Dr Trendafil Ivanovski, Mrs Mirjana Lazarova Trajkovska, Mrs Vera Markova, Mr Branko Naumoski, Dr Bajram Polozani, Mr Igor Spirovski, and Dr Zoran Sulejmanov.

U.no.85/2006
13 September 2006
S k o p j e

PRESIDENT
of the Constitutional Court of the Republic of Macedonia
Mahmut Jusufi

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