Resolution U.no.133/2005

U.no.133/2005

On the basis of Article 110 of the Constitution of the Republic of Macedonia and Article 28 line 1 and Article 71 of the Rules of Procedure of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 6 June 2007, the Constitutional Court of the Republic of Macedonia passed the following

RESOLUTION

1. A procedure IS INITIATED to appraise the constitutionality of:
– Article 4 in the parts: “and are the majority in that local self-government unit” and “constantly”;
– Article 5 in the parts: “and are the majority in that local self-government unit”, “state bodies, public services and legal entities founded by the state” and “and other infrastructural facilities”line 3 of Article 5 in the part: “and others”;lines 4 and 5 of Article 5;
– Article 6 paragraph 1 in the part: “and are the majority in that local self-government unit”;line 1 in paragraph 1 of Article 6 in the parts: “in international meetings” and “political”;line 2 in paragraph 1 of Article 6 in the part: “political”, and
– Article 8 in the part: “and are the majority in that local self-government unit”, from the Law on the Use of the Flags of the Communities in the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.58/2005).

2. NO procedure is INITIATED to appraise the constitutionality of the wholeness of the Law noted in item 1 of the present Resolution, the wholeness of Articles 4, 5, 6 and 8, and notably the challenged Articles 1, 2 and 3 of the same Law.

3. The initiative of the Macedonian People’s Party in the part requesting instigation of a procedure to appraise the mutual concordance of the Law noted in item 1 of the present resolution with the Law on the Coat-of-Arms, the Flag and the National Anthem of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.32/1997) IS DISMISSED.

4. This Resolution shall be published in the “Official Gazette of the Republic of Macedonia”.

5. Tome Todorovski from Sveti Nikole, Gorgi Naumov from Skopje, VMRO-People’s Party, the League for Democracy, and the Macedonian People’s Party submitted an initiative to the Constitutional Court of the Republic of Macedonia to initiate a procedure to appraise the constitutionality of the Law and certain provisions of the Law, noted in item 1 of this Resolution.

– According to the statements in the initiative of Tome Todorovski from Sveti Nikole, the challenged Law was in contradiction with Articles 1 and 5 of the Constitution of the Republic of Macedonia. Namely, according to the submitter of the initiative, sovereignty is the highest public authority in certain territory which did not allow competition of any other authority. Sovereignty was unlimited authority of all subjects existing in certain territory, and that was significant characteristic of the state. Hence, the raising of another country’s flag on the territory of the Republic of Macedonia (belonging to a neighbouring or any other state) would mean that the Republic of Macedonia shared sovereignty with another state, which introduced a parallel sovereignty of another state on the territory of the Republic of Macedonia.

According to the submitter of the initiative, the flag was a state symbol which expressed the belonging to the Republic of Macedonia. Hence, any hoisting of another country’s flag marked the belonging to another state in the territory of the Republic of Macedonia. That was some kind of governance on certain territory in the Republic of Macedonia by another state, since inter alia history has clearly demonstrated that when conquering a foreign state the conqueror has promptly used its own flag and established its own authority, while the flag of the defeated state has been removed.

Furthermore, what is noted in the initiative is that from the content of Article 5 of the Constitution it clearly derived that there may be only one flag in the Republic of Macedonia, and a flag of another state could not be a state symbol and express the belonging to the Republic of Macedonia.

Namely, the contested Law did not clearly define what a state symbol is, and what a flag of members of a community is, the same encompassed a matter for undefined, undetermined and unknown flags that were not in the Constitution, which made the Law absurd, full of paradoxes and contrary to the Constitution. Such Law could not be an act of operationalisation of the Constitution since as compulsion it introduced new flags of foreign states, and there were no provisions in the Constitution meaning that a state symbol of the Republic of Macedonia could also be a flag of another state, which could be freely used within its territory.

In the initiative the submitter asks several questions:

Does the contested Law endanger the territorial sovereignty of the state which pursuant to the Constitution should be indivisible, inalienable and non-transferable?
Does the hoisting and the use of another state’s flag on the territory of the Republic of Macedonia transfer part of the sovereignty of the Republic of Macedonia to the state which flag is used?
Do the facilities of the state bodies and local self-government belong to the Republic of Macedonia or to the state whose flag is used?
Finally, the submitter of the initiative states that the now contested Law was the same, that is, similar to the Law on the Use of the Flags through which the Members of the Nationalities in the Republic of Macedonia Express their Identity and National Specifics, which was annulled by the Constitutional Court, and on the basis of the already established case law proposes that the contested Law be annulled.

– According to the statements in the initiative submitted by Gorgi Naumov from Skopje, the challenged Law was not in accordance with Article 1 paragraphs 1 and 2, Article 5 paragraph 1, Article 8 paragraph 1 line 11, Article 48 paragraph 1, and Article 51 paragraph 1 of the Constitution of the Republic of Macedonia, first of all for a reason that the Law was inapplicable.
Namely, Article 2 of the contested Law was identical with Article 2 of the Law on the Use of the Flags through which the Members of the Nationalities in the Republic of Macedonia Express their Identity and National Specifics and this provision with the wholeness of the Law noted were repealed by the Constitutional Court.

Furthermore, the submitter of the initiative, based on the contents of Article 5 of the Constitution, notes that there could not be adopted a Law with which the members of the ethnic communities living in the territory of the Republic of Macedonia, and the home parts of which, as a rule, lived in other states, may express their sovereignty with symbols (flags) of their home country. Namely, the ethnic communities noted in the preamble of the Constitution did not have the right to choose and use a national flag of another state to express their identity and specifics, since in that case Article 1 of the Constitution was violated.

The use of national symbols (flags) of other states in the territory of the Republic of Macedonia violated the unitary character of the state and thereby symbolically manifested a divided sovereignty of the Republic of Macedonia with the states whose national symbols were used within its territory.

Furthermore, the submitter of the initiative notes that the Law was not in accordance with Article 8 paragraph 1 line 11 of the Constitution. Namely, after citing Article 21 of the Framework Convention for the Protection of the Minority Rights, the submitter of the initiative notes that what was undisputed was the fact that there was no international standard which in the corps of the rights of ethnic communities envisaged such right, from where a conclusion is drawn that the same had no right to express their identity through the state flags of their home countries.

The disagreement of the contested Law with Article 48 of the Constitution, later on changed with an amendment, is seen by the submitter of the initiative in that that what was to be adopted first was a law on the symbols of the ethnic communities in the Republic of Macedonia, so that the noted constitutional provision could be operationalised. That law should govern which symbols the members of the communities may have, whether they may have a coat-of-arms and an anthem in addition to a flag, although under the international standards the members of the communities could not have such symbols, since they were a mark of the state, and not of the ethnic communities.

Moreover, according to the submitter of the initiative, the flag could be used only in case when there was a form and content defined by law, or otherwise the use could be abused.  Also, a law should regulate the manner in which the communities could select the flag they want to use, since they had no authorities, institutions and other bodies. That law should regulate which flags could not be selected and used by the members of the communities, as prescribed in Article 10 paragraph 3 of the Law on Local Self-Government. Hence, the disputed law was inapplicable without having adopted a separate law on the symbols of the communities in the Republic of Macedonia.

The initiative particularly points to Article 2 of the contested law and in view of this provision it is stated that it is unclear, insufficiently defined and undeterminable whereby the frameworks and intentions of Article 48 paragraph 1 of the Constitution were exceeded.

On the basis of what has been noted, the submitter of the initiative proposes that the Court repeal the challenged Law.

Given the circumstance that the submitter of the initiative, written on a memorandum of the political party VMRO-DPMNE, has not submitted an authorisation from the party noted for submitting the initiative, and has not certified it with the party’s stamp, the Court has treated the same as an initiative submitted by a citizen.

– In the initiative of VMRO-People’s Party it is stated that item 1 of Amendment 8 to the Constitution was a legal ground for the adoption of the contested law. However, the Framework Convention for the Protection of the Rights of National Minorities (Articles 5 and 21) did not define an international standard with which national minorities would express, foster and develop the identity and national specifics through the right to select and use their own flags in the territory of the state whose nationals they are, since it was contrary to the basic principles of international law and notably to sovereign equality, territorial integrity and political independence of states.

According to the submitter of the initiative the disputable question being raised in this specific case was: Do the communities have an absolute right to decide independently on the determination of the form and content (description) of their flags for the purposes of expressing their identity and specifics, including the right to choose a flag of another state (their home country, as it was envisaged in the contested Article 2 paragraph 2 of the Law) as their own flag, or that right of the communities was limited with Articles 1, 3 and 5 and with the fundamental value of Article 8 paragraph 1 line 11 of the Constitution of the Republic of Macedonia?

Namely, the noted provisions created an obligation for the communities in the choosing of their own flags to integrate also the flag of the Republic of Macedonia, being led by the principle of indivisibility of sovereignty, its inalienability and non-transferability.  The noted provisions were the basis, framework and direction for the choosing of the flags of the members of the communities in the Republic of Macedonia.

On the basis of what has been stated, the submitter of the initiative considers that the right of the members of the communities to choose their own flag for the purposes of expressing their own identity was not absolutely free, but was limited and there had to be an application of the flag of the Republic of Macedonia in their flags, as confirmation to the unitary character of the state and the state sovereignty which is indivisible, inalienable and non-transferable. This was in line with Articles 5 and 21 of the Framework Convention for the Protection of the Rights of National Minorities.

As corroboration of the statements in the initiative it is pointed to the adopted Decisions by the Constitutional Court U.no.141/1997 and U.no.146/1997 of 18 November 1998 which repealed the Law on the Use of the Flags through which the Members of the Nationalities in the Republic of Macedonia Express their Identity and National Specifics and the Decree for proclamation of the law noted. Thereby, it is specifically stressed that in that case what was disputed was the right to use flags of nationalities, and in this case what is disputed is the form and the content (description) of the flags of the communities.

The initiative also contains a separate proposal for the adoption of a resolution to suspend the execution of individual acts or actions being undertaken on the basis of the contested Law, as well as a proposal for the Court to adopt a Decision on annulment of the Law.

– According to the statements in the initiative of the League for Democracy, the contested Law was in contradiction with Article 5 paragraph 1 of the Constitution of the Republic of Macedonia.

Namely, if it could be accepted that the members of the communities had the right to use special symbols in order to express their identity, as envisaged in Articles 1, 2 and 3 of the Law, there could not be accepted “by any means” that these special symbols could be identical with the symbols of their home country. The submitter of the initiative requests that this legal solution be revised since the flags that were chosen by the Albanian and Turkish communities were actually the flags of the Republic of Albania and the Republic of Turkey.

Furthermore, the submitter of the initiative notes that the flag is a symbol of the state according to which the same differs from the other states internationally, and that symbol marked the space in which the sovereignty of the state extended. Therefore, the hoisting of flags of other states in the territory of the Republic of Macedonia led everybody questioning whose territory it concerned.

Pointing to the Decision of the Court U.no.141/1997 and U.no.146/1997 of 18 November 1998, it is proposed that the concrete case be treated as res iudicata, and the now disputed law be proclaimed as repetition of the old repealed Law, that is, be considered as circumvention of Article 112 paragraph 3 of the Constitution, under which the decisions of the Constitutional Court are final and enforceable.

– In its initiative the Macedonian People’s Party states that the disputed Law in its entirety and notably Articles 1, 2, 3, 4, 5 and 6 were in contradiction with Articles 1, 3 and 5 of the Constitution of the Republic of Macedonia.

Namely, the challenged Law provided a possibility for the communities to choose and use a flag of another state in front of facilities of state bodies whereby those flags gained the status of state symbols, which was in contradiction with Article 5 of the Constitution. In this way what was done was division of the sovereignty of the Republic of Macedonia, contrary to Article 1 of the Constitution, since the flag reflected the sovereignty of the state in its entire territory, for which the Constitutional Court had already given its view with its decision.

Furthermore, the initiative notes that the provisions from the contested Law were in contradiction with the Law on the Use of the Coat-of-Arms, the Flag and the National Anthem of the Republic of Macedonia. This for a reason that the coat-of-arms, flag and national anthem of the Republic of Macedonia expressed the belonging to the Republic of Macedonia (Article 2 of the law noted). Concomitantly, there was also contradiction with Articles 16 and 17 of the Law, which regulated the manner in which the flag of the Republic of Macedonia was hoisted.

On the basis of what has been noted, the submitter of the initiative proposes that the whole Law or part of the Law that were in direct contradiction with the Constitution be annulled.

6. At its session the Court found that in line with the contents of Article 1 of the Law on the Use of the Flags of the Communities in the Republic of Macedonia, this Law regulates the right and the manner of use of the flags through which the communities in the Republic of Macedonia express their identity and specifics.

Under Article 2 of the Law, the communities in the Republic of Macedonia have the right to use a flag, for the purposes of expressing their identity and specifics (paragraph 1). A “flag” in the sense of paragraph 1 of this article means a flag that the communities chose and use as a flag to express their identity and specifics (paragraph 2).

Under Article 3 of the Law, the communities in the Republic of Macedonia use the flag with which they express their identity and specifics in the public, official and private life in a manner defined by this Law.

Under Article 4 of the Law, in the local self-government units where there are citizens who are members of the community and are the majority of that local self-government unit, in line with Article 2 of this Law, the flag of the Republic of Macedonia and the flag of that community are constantly raised in front of and inside the facilities of the bodies of local self-government units.

Under Article 5 of the Law, in the local self-government units in which citizens who are members of the community and are the majority in that local self-government unit live, in line with Article 2 of this Law, in front of and inside the facilities of the state bodies, public services and legal entities founded by the local self-government units, on the streets, at the squares and other infrastructural facilities, the flag of that community is hoisted in addition to the flag of the Republic of Macedonia:
– on days of national and other holidays of the Republic of Macedonia defined by law;
– on days of holidays of the communities;
– on days of municipal and other holidays defined by a decision of the council of the local self-government unit;
– when welcoming or farewell the President of the Republic of Macedonia, the President of the Assembly of the Republic of Macedonia and the President and members of the Government of the Republic of Macedonia; and
– in an official visit of a President or Prime Minister of a foreign state, as well as a sovereign or a high representative of the international community. Under Article 6 paragraph 1 of the Law, in the local self-government unit in which citizens who are members of the community and are the majority in that local self-government unit live, in line with Article 2 of this Law, if the flag of that community is hoisted the flag of the Republic of Macedonia is also hoisted:
– in international meetings, competitions and other gatherings (political, scholarly, cultural-artistic, sport, etc.) in which the local self-government unit is the organiser, participant or is represented, in line with the rules and the practice of holding such gatherings; and
– at celebrations, ceremonies and other political, cultural, sport and similar manifestations that are significant for the local self-government unit.

Under paragraph 2 of the same provision, in the cases of paragraph 1 of this Article, the flags are hoisted at the same time in front of and inside the facilities in which meetings, competitions, gatherings, celebrations, ceremonies, and manifestations are held.

Under Article 7 of the Law, the members of the communities in the Republic of Macedonia have the right to use the flag through which they express their identity and specifics in their private life and when holding cultural, sport, and other performances that are organised by the members of the communities in the Republic of Macedonia.

Under Article 8 of the Law, in the local self-government unit in which there are citizens who are members of the community and are the majority in that local self-government unit, the flag of the Republic of Macedonia and the flag of that community are hoisted in the following manner:

– when the flag of the Republic of Macedonia is hoisted together with the flag of the community and the flag of the local self-government unit, the flag of the Republic of Macedonia is hoisted in the middle, while the flag of the community is two metres to the right, as viewed from the front, and the flag of the local self-government unit is two metres to the left from the national flag;
– when the flag of the Republic of Macedonia is hoisted together with the flag of the community, the flag of the community is to the right, as viewed from the front, from the flag of the Republic of Macedonia; and
– when more than three flags are hoisted, the flag of the Republic of Macedonia shall be the first one in the row.

Under Article 9 of the Law, the Council of the local self-government adopts a decision determining the competent subject for the hoisting of the flags in line with Articles 5 and 6 of this Law.

Articles 10, 11 and 12 of the Law contain the penal provisions, which define the amount of the fine for the cases in which the legal entity or the responsible person in the legal entity have made a violation by acting in contradiction with Articles 4, 5, 6 or 8 of this Law.

Article 13 of the Law, as the final provision, envisages that this law enter into force on the eighth day from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

7. Under Article 1 of the Constitution, the Republic of Macedonia is a sovereign, independent, democratic and social state (paragraph 1). The sovereignty of the Republic of Macedonia is indivisible, inalienable and non-transferable (paragraph 2).
Under Article 2 paragraph 1 of the Constitution, the sovereignty in the Republic of Macedonia derives from the citizens and belongs to the citizens.
Under Article 3 of the Constitution, the territory of the Republic of Macedonia is indivisible and inviolable (paragraph 1). The existing borders of the Republic of Macedonia are inviolable (paragraph 2).
Item 1 of Amendment I to the Constitution (“Official Gazette of the Republic of Macedonia”, no.1/1992) supplements Article 3 of the Constitution, and item 2 replaces paragraph 3 of Article 3 of the Constitution which read as follows:
The Republic of Macedonia has no territorial claims towards its neighbouring countries.
The borders of the Republic of Macedonia may be changed only in accordance with the Constitution, and on the principle of voluntarism and in accordance with the generally accepted international norms.
Under Article 5 of the Constitution, the state symbols of the Republic of Macedonia are the coat-of-arms, the flag and the national anthem (paragraph 1).
The coat-of-arms, the flag and the national anthem of the Republic of Macedonia are regulated by law which is adopted by a two-thirds majority vote of the total number of representatives in the Assembly (paragraph 2).
Under Article 8, paragraph 1, lines 3 and 11 of the Constitution, the rule of law and the respect for the generally accepted norms of international law are 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 sex, race, colour of skin, national or social origin, political and religious beliefs, property and social status. The citizens are equal before the Constitution and laws.

Amendment VIII of the Constitution (“Official Gazette of the Republic of Macedonia”, no.91/2001) replaces Article 48 of the Constitution and it reads as follows:
The members of the communities have a right to freely express, foster and develop their identity and the specifics of their communities and to use the symbols of their community (paragraph 1).

The Republic guarantees the protection of the ethnic, cultural, linguistic and religious identity of all communities (paragraph 2).
The members of the communities have a right to establish cultural, artistic and educational institutions, as well as scholarly and other associations for the expression, fostering and development of their identity (paragraph 3).

The members of the communities have a right to instruction in their language in primary and secondary education, in a manner defined by law. In schools where education is carried out in another language, the Macedonian language is also studied (paragraph 4).

In line with 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 respect the Constitution and the laws.

Under item 2 of Amendment X to the Constitution, the laws that directly affect the culture, the use of the languages, the education, personal documents and the use of the symbols are decided by the Assembly with a majority vote of the present representatives, whereby there must be a majority vote of the present representatives who belong to the communities that are not the majority in the Republic of Macedonia. The dispute in connection with the application of this provision is decided by the Committee for Relations among the Communities.

Under Article 112 paragraph 3 of the Constitution, the decisions of the Constitutional Court are final and executive.

Under Article 118 of the Constitution, the international agreements ratified in accordance with the Constitution are part of the internal legal order of the Republic of Macedonia and may not be changed by law.

The Law on Ratification of the Framework Convention for the Protection of National Minorities was published in the “Official Gazette of the Republic of Macedonia”, no.11/1997.

In line with Article 5 paragraph 1 of the Framework Convention, the parties undertake upon themselves to promote the conditions in order to enable the members of national minorities to maintain and develop their culture, as well as to maintain the essential elements of their identity, religion, language, traditions, and cultural heritage.

Under Article 20 of the Framework Convention, in the exercise of the rights and freedoms deriving from the principles noted in this Framework Convention, the members of national minorities observe the national legislation and the rights of others, notably the rights of the members of the majority or of other national minorities.

In line with Article 21 of the Framework Convention, nothing in this Convention shall be interpreted as to giving right to undertake activities or to act contrary to the fundamental principles of international law and notably of sovereign equality, territorial integrity and political independence of states.

Arising from the content of item 1 of Amendment VIII to the Constitution, it derives that the members of the communities have a right to use the symbols of their communities in order to express, foster and develop their identity and the specifics of their communities.

However, the noted Amendment does not further work out the issue regarding the types of symbols, their description, the type of the act in which this right should be regulated, as well as the manner of use of the symbols of the members of the communities.

In the absence of elements to determine the type of the act regulating the use of the symbols of the members of the communities, as well as the type of the symbols in general, it was unavoidable to correlate Amendment VIII to the Constitution with Amendment X to the Constitution that governs the matter for the quorum required for the decision-making of the Assembly in case when a law directly affecting the use of the symbols is concerned, in which case the Assembly decides with a majority vote of the representatives present, whereby there must be a majority vote of the representatives belonging to the communities that are not the majority in the Republic of Macedonia who are present.

From such an established relation between the two amendments to the Constitution it arises that the contested Law is actually operationalisation of these constitutional provisions.

As to the issue regarding the absence of elements in Amendment VIII to the Constitution, through which the description of the symbols of the members of the communities will be more specifically defined, the Court assessed that it concerns a model of constitutional system which determined itself not to go into detailed definition of the description of the symbols in the Constitution, as the highest act, both in view of state symbols and in view of the symbols of the national communities, and left the description of the symbols to be governed in another regulation. This is not the case with the Constitution of the Republic of Macedonia only, but also with the constitutions of the Republic of Belarus, the Russian Federation, the Czech Republic, and the Kingdom of Norway, which do not contain a description even in view of state symbols. Unlike this approach, the Constitution of the Republic of Slovenia (Article 6 paragraph 2) contains a description of the state flag, while Article 64 paragraph 1 defines the right of the autochthonous Italian and Hungarian ethnic communities and their members to freely use their symbols with a view to preserving their national identity, while the manner in which these rights will be used is left to be regulated by law. There is no description of these symbols in the constitutional provisions.

In such a situation, according to the Court, the approach of the legislator to regulate by law the right of the members of the communities that are not the majority in the Republic of Macedonia to use their symbols, as an act lower than the Constitution, is constitutionally justified, since the constitutionally defined right should be worked out, operationalised in a concrete legal framework, which is actually a determination in item 2 of Amendment X to the Constitution.

From what has been noted, it arises that the challenged law has its constitutional ground in Amendment VIII to the Constitution, that is, the members of the communities that are not the majority in the Republic of Macedonia have a constitutionally defined right to use the symbols of their community for the purposes of expressing, fostering and developing their identity and the specifics of their communities.

The submitted initiatives generally do not dispute the right of the members of the communities that are not the majority in the Republic of Macedonia to have their symbols, but challenge the types of symbols that they may use as their own, as well as the form and content (description) of the flags of the communities.

Hence, in the opinion of the Court the content of Articles 1 and 2 of the contested Law, assessed as a whole, as well as the contested Law in its entirety, are in accordance with Amendment VIII to the Constitution.

8. From the content of Article 2 paragraph 2 of the Law, a “flag” in the sense of paragraph 1 of this article, means a flag that the communities that are not the majority in the Republic of Macedonia have chosen and use as a flag to express their identity and specifics.

Hence, if one takes into consideration the content noted in the contested article of the Law, it arises that there is truth in the argument in the submitted initiatives about a wide possibility being left for the choosing of a flag as a symbol of the members of the communities. Such possibility, although includes a selection of a flag of another state as the symbol of the members of the communities that are not the majority in the Republic of Macedonia, by itself, according to the Court, may not cause a well-founded suspicion in view of the conformity of this provision with the Constitution and the articles regulating the issue of the sovereignty of the Republic of Macedonia.

Namely, by leaving such a possibility the legislator took into consideration the historical reality in the creation of national symbols, which in some cases coincide with the flags of other states.

Also, when creating this article of the Law the legislator took into consideration the setup and the meaning of this democratic right in the Constitution. This for a reason that Amendment VIII to the Constitution, based on the systemic setup in the Constitution, is in Part II: BASIC FREEDOMS AND RIGHTS OF THE INDIVIDUAL AND CITIZEN, subtitled: 2. Economic, social and cultural rights, from where it derives that the such envisaged right is on an equal footing with the other prescribed and guaranteed fundamental human freedoms and rights. Actually, this right is not unknown even in the former constitutional systems in the Republic of Macedonia in the so far development of democracy as a political process.

Hence, the selection of a flag of another state as a flag which will serve to symbolise identity and specifics of certain group of members of communities that are not the majority in the Republic of Macedonia could not threaten the sovereignty and state integrity of the Republic of Macedonia as long as the such chosen flag in its use will mean only expression of a belonging to certain community in the function of Amendment VIII to the Constitution.

The words used in Article 2 paragraph 2 of the Law in the past tense “chose and use”, in the opinion of the Court points to a conclusion that with this formulation the legislator actually verifies the existing factual situation of a made choice for their own flag of the members of the communities. Since item 1 of Amendment VIII to the Constitution uses the same terminology “use”, in the opinion of the Court that is confirmation that when creating the norm the legislator remained within the given constitutional framework.

The question as to the conformity with the Constitution could be raised when the use of such chosen flag would not mean belonging to certain community, but belonging to another state. That is still a question that could not be considered through the appraisal of the constitutionality of Article 2 paragraph 2 of the Constitution, but through the other provisions in the Law, such as Articles 4, 5, 6 and 8, which govern the use of the flag of the members of the communities along with the flag of the Republic of Macedonia in front of certain facilities, on the occasion of certain events, meetings, happening, etc.
On the basis of what has been noted, it derives that Article 2 paragraph 2 of the contested Law and the Law altogether could not be questioned in view of their concordance with the provisions of the Constitution which are invoked by the submitters of the initiative.

9. Taking again as a starting point the content of Amendment VIII to the Constitution, it arises that it does not provide for a right of the members of the communities to use symbols based on their percentaged representation at the level of the local self-government unit, but such right is given to all the members of the communities irrespective of their percentaged representation.
Accordingly, in view of Articles 4, 5, 6 and 8 of the Law which envisage the right to use a flag only for the citizens that are members of the communities that are the majority in the local self-government unit, according to the Court raises a well-founded suspicion, in the part noted, regarding the concordance with Amendment VIII to the Constitution, in which the right to use the symbols of the members of the communities is not connected with their percentaged representation.

As a result of this determination, one could express well-founded suspicion in view of the concordance of parts of Articles 4, 5, 6 and 8 of the Law with the Constitution also for a reason that the legislator in that way puts into privileged position the citizens who are members of the communities that are the majority in a concrete local self-government unit, in view of the other members that are not the majority. This especially if one bears in mind that the determination of the Constitution in Amendment VIII is to enable all members of the communities in the Republic of Macedonia, and not only those who are the majority to be enabled to freely express, foster and develop their identity and the specifics of their communities, which in itself eventually contains the principle of equality of the members of all communities before the Constitution and laws.

As a matter of fact, Amendment IV to the Constitution, which replaces the Preamble of the Constitution, inter alia regulates that the citizens of the Republic of Macedonia, the Macedonian people, as well as the citizens living within its borders and are part of the Albanian people, Turkish people, Vlach people, Serb people, Roma people, Bosniak people, and the others, equal in their rights and obligations for the wellbeing of the community-the Republic of Macedonia, decided to constitute the Republic of Macedonia as an independent, sovereign state with the intention to establish and reinforce the rule of law, to guarantee human rights and civil freedoms, to ensure peace and coexistence, social justice, economic wellbeing, and prosperity in the life of the individual and the community.

Hence, from the content of Amendments IV and VIII to the Constitution it arises that the Republic of Macedonia is determined through the rule of law to build itself as a sovereign state based on multiethnic ground in which fundamental freedoms and rights have a significant position, among which are also the rights of all the members of the communities to use the symbols of their community for the purposes of expressing, fostering and developing their identity.

This notably if one takes into consideration that the Constitution in Article 5 and Amendment VIII differentiates between the flag as the symbol of the state and the symbols of the members of the communities, and such difference also derives from the legal provisions, notably Article 8 of the Law which takes account of the honorary position that the flag of the Republic of Macedonia should have, in situations when both the state flag and the flag of the members of the communities are hoisted. Thereby, the flag of the members of the communities in accordance with Amendment VIII to the Constitution, in Articles 1, 2, and 3 of the Law is defined as a symbol of expressing the identity and the specifics of the members of the communities.

Hence, regarding Articles 4, 5 and 6 in the parts: “and are the majority in that local self-government unit”, as well as Article 8 in the part: “and are the majority in that local self-government unit” of the Law, the Court expressed a well-founded suspicion as to their concordance with Amendment VIII, as well as with Article 9 paragraph 2 of the Constitution.

10. From the content of Article 1 of the Constitution, it stems that the Republic of Macedonia is constituted as a sovereign, independent, democratic and social state, in which the sovereignty of the Republic is indivisible, inalienable and non-transferable.

Hence, the Republic of Macedonia has the highest and unlimited authority and position in the state territory. The sovereignty of the state is a significant characteristic of the state with the aid of which it becomes independent from external factors (external sovereignty) and a higher factor in view of the internal subjects (internal sovereignty). Thereby, Article 2 of the Constitution of the Republic of Macedonia defines the citizen as the source and holder of sovereignty whereby it affirms the theory of civic multinational sovereignty, and all the citizens living in the Republic being equal in their rights and obligations for the wellbeing of the community – the Republic of Macedonia.

Given the circumstance that the contested Law governs a simultaneous use of the flag of the Republic of Macedonia, as the state symbol, together with the flag of the members of the communities it was unavoidable to establish a relation between Articles 1, 2 and 3 and Article 5 of the Constitution with the provisions of the contested Law.

Namely, based on Article 5 of the Constitution, the flag is one of the state symbols through which are expressed the state sovereignty and territorial integrity of the Republic of Macedonia, whereby the hoisting of the state flag and its use in general symbolises belonging to certain state in which manner state identity and state characteristics are expressed.

Unlike that, the use or hoisting of the flag of the members of the communities is aimed at symbolizing the belonging to certain community for the purposes of expressing the identity and specifics of that community.

Hence, a question was raised whether certain parts of certain provisions (Articles 4, 5 and 6) governing the use of both symbols, same by type but different by essence, inside and in front of certain facilities on defined holidays, occasions and events can question the sovereignty of the Republic of Macedonia stipulated in Articles 1, 2 and 3 of the Constitution, as well as the state symbols as an expression of the state sovereignty stipulated in Article 5 of the Constitution.

a) Namely, from the content of Article 2 item 1 of the Law on Local Self-Government (“Official Gazette of the Republic of Macedonia”, no.5/2002), according to which the municipality is a local self-government unit, being the community of the inhabitants in certain area defined by law, it arises that the local self-government units are constituted, established for the purposes of meeting the needs of all inhabitants in that area.

Hence, the constant hoisting of a symbol (flag) in front of and inside the facilities of the bodies of the local self-government unit (the council and the mayor, under Article 31 of the Law on Local Self-Government), as defined in Article 4 of the contested Law, according to the Court, could only mean that in that area all the inhabitants, and not only those that are the majority in that local self-government unit, in an organised form exercise the authority and meet their needs locally.

Otherwise that would mean that in the multiethnic local self-government unit the power at local level is exercised only by those members of the communities whose flag is constantly hoisted in front of and inside the facilities envisaged by the Law. At the same time that will signify that sovereignty at local level, and even wider at state level, does not belong to all citizens, but only to those whose flag is constantly hoisted in the local self-government unit, whereby, according to the Court, a question was raised as to the concordance of the noted provisions from the Law, with Article 1, Article 2 paragraph 1, and Article 5 of the Constitution.

Hence, if the local self-government unit is a community of the inhabitants in a certain area defined by law, in the opinion of the Court, in front of and inside the facilities of the local self-government unit the only flag that could be hoisted constantly is the municipal flag, as a symbol that differentiates that local self-government unit from the others and signifies that in that geographically defined territory live and act in an organised form, locally, the citizens of the Republic of Macedonia in that municipality, irrespective of their national belonging. As a matter of fact, Article 10 of the Law on Local Self-Government, under which the municipality may have its coat-of-arms and a flag as its symbols, serves for the purposes of realising that aim.

On the basis of what has been noted, in view of the part: “constantly” in Article 4 of the Law, according to the Court’s judgment there is a well-founded suspicion as to its concordance with Article 1, Article 2 paragraph 1 and Article 5 of the Constitution, under which the sovereignty of the Republic of Macedonia is indivisible, derives from the citizens and belongs to all the citizens of the Republic of Macedonia, and the flag of the Republic of Macedonia is a state symbol.

b) Article 5 of the contested Law governs the raising of the flag of the Republic of Macedonia and the flag of the members of the communities that are the majority in the local self-government unit in front of and inside facilities of the state bodies, public services, and legal entities founded by the state and the public services and legal entities founded by the local self-government unit during holidays, events, meetings, visits of foreign statesmen or high representatives of the international community, etc.

From the content of Article 5 of the Law, inter alia it arises that the same provides for occasional hoisting of the flag of the members of the communities and the flag of the Republic of Macedonia in front of and inside the facilities of the state bodies, public services and legal entities founded by the state. As a result, a question is raised as to what is the symbolic of the use of the flag of the members of the communities in front of and inside these facilities.

Namely, if one takes into consideration that this case concerns the use of a flag in front of and inside facilities of state bodies, public services and legal entities founded by the state, in the assessment of the Court it is constitutionally justified to hoist only the state flag as an expression of state sovereignty, but not the flag of the members of the communities as an expression of the identity and specifics of the communities.

Hence, as to the part: “state bodies, public services and legal entities founded by the state” of Article 5 of the Law, the Court expressed a well-founded suspicion in view of its concordance with Article 1, Article 2 paragraph 2 and Amendment VIII to the Constitution.

Furthermore, regarding the part: “and other infrastructural facilities” of the same article in the Law, in the assessment of the Court there is a well-founded suspicion in view of its conformity with Article 8 paragraph 1 line 3 of the Constitution.

Namely, if one takes into consideration that the expression “and other infrastructural facilities” encompasses, in addition to the specifically defined facilities for hoisting the flags, any other facility having an infrastructural character, it means that the flags are hoisted at: barracks, border crossing points, theatres, railways, water supply systems, old people’s homes, parks, museums, etc., where on the occasion of the events envisaged in Article 5 paragraph 1 of the Law in front of and inside each facility built by human hand, that is intended for public needs, the state flag and the flag of the members of the communities will be hoisted.

In the assessment of the Court, it is unclear why the legislator gave such a general formulation, in a condition when the provisions before the general formulation contain an exhaustive and all-inclusive enumeration, which makes unclear the aim of such normative technique.

Hence, according to the Court, these partial and arbitrary norms question the agreement of Article 5 of the Law with Article 8 paragraph 1 line 3 of the Constitution and the rule of law as a fundamental value of the constitutional order. This for a reason that in order to fully realise this fundamental value it is necessary for the norms to be clear, complete and unambiguous, whereby there will be no possibility left for arbitrariness in the interpretation and their application.

This broad and partial normative effort is present also in the part: “and others” of Article 5 line 3 of the Law. Thereby, the Court finds it as undoubted to hoist the flag of the members of the communities during the holidays of the communities, in which moments the same symbolises that certain members of the community have their own holiday as an expression of their identity and specifics. However, in a situation when the legal provision specifically enumerates all the types of possible holidays, such as state, municipal and religious, the Court does not find a constitutional justification for the noted formulation “and others” and the left possibility in addition to the specifically enumerated holidays the flag of the members of the communities to be hoisted also during undefined, undetermined holidays.

Hence, regarding this part also, from the aforementioned reasons, the Court expressed a well-founded suspicion of its conformity with Article 8 paragraph 1 line 3 of the Constitution and the rule of law as a fundamental value of the constitutional order of the Republic of Macedonia.

Furthermore, the Court also expressed a well-founded suspicion of the concordance of lines 4 and 5 of Article 5 of the Law with the Constitution.

Namely, the Court finds it undoubted to hoist the state flag on the occasion of welcoming and farewell the President of the Republic of Macedonia, as a person representing the Republic of Macedonia in the country and outside it and as the supreme commander of the armed forces of the Republic of Macedonia; the President of the Assembly of the Republic of Macedonia, as the person representing the highest body of representatives and the legislative power, as well as the President of the Government of the Republic of Macedonia, as the person representing the executive power (Article 5 line 4). This for a reason that the functions noted according to the setup in the constitutional system unavoidably are subject to showing respect and to corresponding honours and the sovereignty and statehood of the Republic of Macedonia is expressed through the persons carrying out these functions.

Thereby, the Court took into consideration that the flag is the symbol of each state through which its internal and external sovereignty and individuality are determined, from where the citizens of the Republic of Macedonia irrespective of their belonging, have a general civil duty to respect this state symbol. Consequently, the regulations governing the matter of the use of the state flag with any other flag, including the flag of the members of the communities, must meet the criteria for fulfilling the noted function and civil duty.

However, in case when welcoming or sending off the holders of the highest state functions or during visits of foreign statesmen or high representatives of the international community (line 5) the flag of the members of the communities is hoisted, the hoisting of the flag of the members of the communities may not gain the treatment of a flag with which the identity of the members of the communities is expressed and fostered, since on the occasion of such events there may not be expressed identity of the communities, but a state sovereignty. On the occasion of such events, in the assessment of the Court it is constitutionally justified to hoist only the state flag.

Hence, in view of lines 4 and 5 of Article 5 in the Law, the Court expressed a well-founded suspicion regarding their concordance with Article 1, Article 2 paragraph 1, and Article 5 of the Constitution, which defines the coat-of-arms, the flag and the national anthem of the Republic of Macedonia as state symbols.

In the analysis of the conformity of the contested law and its individual provisions, the Court dwelled also on the content of the provisions from the Vienna Convention on Consular Relations, to which the Republic of Macedonia acceded with the Decision no.23-2185/1 of 28 July 1993 (“Official Gazette of the Republic of Macedonia”, no.48/1993).

Namely, Article 29 of the Convention regulates the use of the national flags and coat-of-arms of foreign states. Under paragraph 1 of this article, the sending state is given a right to use its national flag and coat-of-arms in the receiving state. Under paragraph 2, it is allowed to hoist the national flag of the sending state and to raise its coat-of-arms at the facility where the consular mission is housed, as well as at the residence of the chief of the consular mission and his means of transportation when in official use. Under paragraph 3, in the exercise of the rights of paragraph 1 of this article attention must be paid to the laws, regulations and customs of the receiving state.

From the content of the noted provision, as well as from the whole text of the Convention, it arises that the Signatory States have not envisaged a direct prohibition or reservation for the use of their flag, as state symbol, for purposes that are not governed by this Convention. As a matter of fact, the hoisting of a flag of another state for the situations in the Convention is aimed at expressing promotion of friendly relations between states by observing their differences in the constitutional and social structure.

c) Article 6 of the contested law provides for concomitant hoisting of the flag of the Republic of Macedonia and the flag of the members of the communities that are the majority in the local self-government unit in front of and inside facilities in which are held international meetings, competitions, gatherings, celebrations, ceremonies and manifestations and in the cases when the local self-government unit is the organiser, takes part or is represented or when the noted events and occasions are of significance for the local self-government unit.

Thereby, according to the Court, the symbolic of hoisting a flag of the members of the communities at an international political meeting or international political manifestation has no constitutional justification if one takes into consideration that under the concept of the Constitution of the Republic of Macedonia that right is exclusively within the competence of the state and its bodies, that is, within the competence of the President of the Republic of Macedonia, the Assembly of the Republic of Macedonia and the Government of the Republic of Macedonia that may appear as the organisers or may take part at international political meetings. Also, according to the list of competences of the local self-government units defined in Article 22 of the Law on Local Self-Government, the same may not appear as the organiser or participant in an international political meeting.

Also, the Court could not perceive constitutional justification of the use of the flag of the members of the communities at an international sport event in which the state should defend the state colours internationally, thereby expressing the identity and sovereignty of the Republic of Macedonia.

In the assessment of the Court, the members of the communities have an undisputed right to hoist their flag together with the flag of the Republic of Macedonia in the cases when competitions or other meetings of cultural, artistic or sport character are organised, or celebrations and ceremonies having as its aim expressing, fostering and developing the identity of the members of the communities. This for a reason that the hoisted flag of the members of the communities in such cases will reflect their specifics and identity, and will enable to differentiate them from the other participants in such manifestations for the purposes of which the flags are actually used as symbols.

However, that cannot be said also for international political meetings, international competitions, international scholarly gatherings at which solely the Republic of Macedonia may be represented or take part with a view to expressing, fostering and developing the identity of the Republic of Macedonia, as a sovereign state.

Hence, in view of the parts: “international meetings”, and “political”, in line 1 paragraph 1 of Article 6, as well as the part: “political”, in line 2 of the same article in the Law, the Court expressed a well-founded suspicion regarding their conformity with Article 1, Article 2 paragraph 1, Article 5, and Amendment VIII to the Constitution.

On the basis of the summarised analysis of Articles 4, 5 and 6 of the contested Law and certain parts in them regarding their concordance with the constitutional provisions, it arose that there may be expressed a well-founded suspicion in view of their constitutionality.

From the analysis made to the: constitutional provisions, international acts, comparative law and provision of the contested Law, a well-founded suspicion arose in view of the concordance of the noted parts of Articles 4, 5 and 6 and 8 of the Law with Article 1, Article 2 paragraph 1, Article 5, Article 8 paragraph 1 line 3 and Amendment VIII to the Constitution.

On the basis of what has been noted, the Court decided as in item 1 of this Resolution.

11. The observance of the generally accepted norms of international law is one of the fundamental values of the constitutional order of the Republic of Macedonia, from where derives the right of national minorities, that is in our case the members of the communities, to freely express, foster and develop their identity and specifics.

Respecting the right of the members of the communities to use their symbols in order to express, foster and develop their identity, defined as such in Amendment VIII to the Constitution, but also in line with the provisions of the Framework Convention for the Protection of National Minorities, the Court found that the Constitution of the Republic of Macedonia extended the rights of the members of the communities, unlike the international acts that are an integral part of the internal legal order.

Namely, while the Constitution has given a right to the members of the communities to use their symbols, as an expression of their identity and specifics, in no international act is such a right envisaged. Viewed from the aspect of the regulation of other countries governing this right at constitutional level, only the Republic of Slovenia in Article 64 paragraph 1 of the Constitution defined a right for the autochthonous Italian and Hungarian ethnic communities and their members to freely use their symbols with a view to preserving their national identity. From the aspect of legal regulation such a right is stipulated in the Republic of Slovenia and the Republic of Croatia.

However, in the assessment of the Court, irrespective of the lack of regulation in international acts regarding this right, it is undisputed that the members of the communities in the Republic of Macedonia may enjoy the constitutionally defined right, in a manner that will enable respect for the national legislation and the rights of others, notably the rights of the members of the majority or of the other members of communities, by restraining from activities that would be contrary to the basic principles of international law and notably sovereign equality, territorial integrity and political independence of the states in which such rights are guaranteed to them, which derives from the content of Articles 20 and 21 of the Framework Convention.

Hence, judging the contested law in general, a conclusion derives that it contains greater rights for the members of the communities than those that are established in the generally accepted norms and acts of international law.
However, certain parts of Articles 4, 5 6 and 8 of the Law, owing to the meaning of the symbolic of the use of the flag of the members of the communities in the given situations, notably owing to the such right given only to the members of the communities that are the majority in the local self-government unit, but not to all the members of the communities, diverge the aim of Articles 20 and 21 of the Framework Convention.
Namely, the aim of the noted provisions is to enable the protection of the sovereign equality, territorial integrity and political independence of the states in which there are members of national minorities against the enjoyment of the given right in a manner that would not question the sovereignty and territorial integrity, which certainly have their expression also through the state flag as the symbol of the state.  Also, in the enjoyment of the given rights the members of the national communities should not elevate themselves with that right above the other members of the communities or above the rights of the members of the majority.

Hence, the enjoyment of a given constitutional right for the use of the flag of the members of the communities may not in any way be manifested in a manner that could cause a feeling of insufficient respect or absence of respect for the state flag, or the flag of the other members of communities.

Regarding the statements about the disagreement of the contested Law with Article 5 and Article 21 of the Framework Convention for the Protection of National Minorities, the Court judged that in the international acts, including the noted Convention, there is no international standard which governs the right of national minorities to use the right to their symbols.

Hence, the fact that the contested Law provided for greater rights for the members of the communities than those recognised in the generally accepted norms and acts of international law, may not be the ground to question the wholeness of the Law in view of its conformity with Article 8 paragraph 1 line 11 and Article 118 of the Constitution.

12. Furthermore, the Court judged that there is no room to question in a well-founded manner the entire Law, as well as the separately contested Articles 1 through 6 and the entire Articles 4, 5, 6 and 8 of the Law in view of the provisions in the Constitution. This for a reason that the Law and the noted provisions judged in their entirety do not question the state sovereignty of the Republic of Macedonia, since the regulation of the constitutionally given right for the members of the communities to use their own symbols only reinforces the state sovereignty of the Republic of Macedonia, as a multiethnic environment and a multiethnic community.

On the basis of what has been noted, the analysis of the constitutional provisions, the international acts and the provisions of the challenged Law, the constitutional court case-law and the obtained the comparative law, the Court decided as in item 2 of this Resolution.

13. As to the statement in the initiative of Tome Todorovski from Sveti Nikole regarding the need for the Court to act in the same manner as it had acted in the case U.no.141/1997 and U.no.146/1997 in order to adhere to the established case-law of the Court, as well as in view of the statement in the initiative of the League for Democracy regarding the existence of an adjudicated matter and the possible violation of Article 112 paragraph 3 of the Constitution, the Court judged that the such noted statements are unfounded.

This for a reason that at the time when the Law on the Use of the Flags through which the Members of the Communities of Nationalities Express their Identity and National Specifics was valid, later on repealed by the Decision of the Court U.no.141/1997 and U.no.146/1997 of 18 November 1998, Article 48 of the Constitution was in force. This constitutional provision did not know of a right of the members of the communities to use their symbols and such right has been established by Amendment VIII to the Constitution. Also, beside certain essential similarities between the former and the present contested laws there are also certain essential differences.

Hence, the statement about a violation of Article 112 paragraph 3 of the Constitution, and the statement about the Court’s full adherence in this case to the established constitutional court case-law cannot be accepted.

Also, there is no foundation in the statement of Gorgi Naumov from Skopje regarding the discordance of the contested law with the constitutional provisions for a reason that prior to adopting the contested law the legislator should have adopted a law on the symbols of the members of the communities.

Namely, pursuant to Article 110 of the Constitution, the Constitutional Court, inter alia, judges the conformity of the laws with the Constitution, from where it arises that the appraisal of the constitutionality refers to what is contained in the contested act, and not to what was omitted to be regulated by it, or what in the opinion of the submitter of the initiative should have preceded the adoption of a concrete law.

The question about a possible lack of regulation in view of the form and content of the flag of the members of the communities and the manner of its selection may be considered only by means of an existing, valid regulation in relation with the constitutional provisions. Also, it is a matter of assessment of the legislator whether the matter for the use of the state flag and the flag of the members of the communities will be regulated in separate laws or in one law only.

Pursuant to Article 110 lines 1 and 2 of the Constitution of the Republic of Macedonia, the Constitutional Court of the Republic of Macedonia decides on the conformity of the laws with the Constitution and on the conformity of the other regulations and collective agreements with the Constitution and laws.

Under Article 28 line 1 of the Rules of Procedure of the Constitutional Court of the Republic of Macedonia, the Constitutional Court of the Republic of Macedonia shall dismiss the initiative if it is not competent to decide on the request.

On the basis of the noted constitutional provision, it clearly derives that the Constitutional Court is not competent to appraise the mutual concordance of the laws or more specifically the contested Law with the Law on the Coat-of-Arms, the Flag and the National Anthem of the Republic of Macedonia, as is requested in the initiative of the Macedonian People’s Party, as a result of which the Court decided as in item 3 of this Resolution.

Again based on the competence of the Court defined in Article 110 of the Constitution, it arises that the Constitutional Court is not competent to decide on the application of the Law to which is pointed in the submitted initiative, since its application is a factual matter.

In view of the proposal to suspend the execution of the individual acts or actions being undertaken on the basis of the Law, according to the Court there are no consequences that are difficult to be removed. Therefore, the procedural presuppositions for the adoption of this Resolution on the basis of Article 27 of the Rules of Procedure of the Court are not met.

14. The Court passed this resolution in the following composition: the President of the Court Mr Mahmut Jusufi, and the judges: Dr Trendafil Ivanovski, Mrs Liljana Ingilizova-Ristova, Mrs Mirjana Lazarova Trajkovska, Mrs Vera Markova, Mr Branko Naumoski, Dr Bajram Polozani, Mr Igor Spirovski, and Dr Zoran Sulejmanov. The resolution under item 1 was passed by the Court with a majority vote, while the resolution under items 2 and 3 was passed by the Court unanimously.

U.no.133/2005
6 June 2007
S k o p j e

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

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