138/2013

U.br.138/2013

Вовед

On the basis of Article 110 of the Constitution of the Republic of Macedonia and Article 28 lines 1 and 3 and Article 71 of the Rules of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 26 February 2014, the Constitutional Court of the Republic of Macedonia passed the following

RESOLUTION

Текст

1. The application for initiation of a procedure to appraise the constitutionality and legality of
– the judgment of the Higher Administrative Court of the Republic of Macedonia Uz.br.800/2013 of 4 July 2013;
– the judgment of the Administrative Court of the Republic of Macedonia U-5 br.701/2012 of 7 February 2013;
– the resolution of the second instance body – Appeals Commission – Skopje, no.15-48/2 of 28 March 2012; and
– the resolution of the Central Register of the Republic of Macedonia under record no.30120110047571 of 7 October 2011, IS DISMISSED.

2. The application of the association “Radko” – Ohrid for the protection of the freedoms and rights envisaged in Article 110 line 3 of the Constitution of the Republic of Macedonia IS DISMISSED.

3. The association “Radko” from Ohrid filed an application with the Constitutional Court of the Republic of Macedonia to initiate a procedure to appraise the constitutionality and legality of the acts noted in item 1 of this Resolution. At the same time, the application contains a request for the protection of the freedoms and rights envisaged in Article 110 line 3 of the Constitution, violated with the acts noted in item1 of this Resolution and which relate to discrimination of the citizens on grounds of nationality.

The initiative challenges the said acts for a reason that the same violated the right to association referred to in Article 20 paragraphs 1 and 2 of the Constitution and at the same time discriminated certain group of citizens of the Republic of Macedonia on grounds of national-cultural self-identification (Article 9 of the Constitution).

Namely, the initial act actually in part concerns a request for the appraisal of the constitutionality and legality of the judgments of the Higher Administrative Court, that is, the Administrative Court, and the Central Registry of the Republic of Macedonia and the Appeals Commission, and in part contains a request for the protection the freedoms and rights referred to in Article 110 line 3 of the Constitution, violated with these acts.

The application also states that the challenged acts are in direct conflict with the international treaties ratified in accordance with the Constitution of the Republic of Macedonia, Article 8 paragraph 1 line 1 and paragraph 2 and Article 118 of the Constitution of the Republic of Macedonia. This for a reason that despite the judgment of the European Court of Human Rights finding that the Republic of Macedonia violated the European Convention and the right of association when the decision of the Constitutional Court of the Republic of Macedonia had declared the program and statute of the Association “Radko” null and void, and this Association had not been recorded and registered.

The said acts were direct disrespect for the dignity of certain group of citizens of the Republic of Macedonia who self-identified themselves as Bulgarians.

4. At its session the Court found that with the Resolution entry no.30120110047571 of 7 October 2011 the Central Registry of the Republic of Macedonia rejected the request of the Association “Radko” – Ohrid for making an entry of the foundation of the Association, since the conditions for making an entry of foundation of the Association were not met.

The Appeals Commission – Skopje, with its Resolution no.15-48/2 of 28 March 2012, rejected the appeal lodged against the said resolution of the Central Registry of the Republic of Macedonia on grounds of lack of merits.

With its Judgment U-5 no.701/2012 of 7 February 2013 the Administrative Court of the Republic of Macedonia rejected the lawsuit of the Association “Radko” – Ohrid against the Resolution of the Appeals Commission – Skopje no.15-48/2 of 28 March 2012 for lack of merits.

With its Judgment UZ.no.800/2013 of 4 July 2013 the Higher Administrative Court fully upheld the Administrative Court Judgment U-5 br.701/2012 of 7 February 2013, and rejected the appeal of the plaintiff Association “Radko” – Ohrid for lack of merits.

5. Under Article 110 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 the concordance of the other regulations and collective agreements with the Constitution and laws.

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

One part of the application relates to the appraisal of the constitutionality and legality of the judgments of the Higher Administrative Court, the Administrative Court, the Appeals Commission and the Central Registry of the Republic of Macedonia, requesting their appraisal with Article 8, paragraph 1 line 1 and paragraph 2, Article 11 paragraph 1, Article 20 paragraphs 1 and 2, Article 25 and Article 118 of the Constitution of the Republic of Macedonia, as well as with the provisions of the Law on Trade Companies.

However, not all regulations may be subject to appraisal before the Constitutional Court, but only the regulations containing general rules of conduct that govern the relations of the subjects in law generally and establish general rights and obligations of an indefinite range of subjects in law.

In this case, the challenged acts do not have the nature of a regulation governing relations between indefinite number of entities in a general way, because from their content it is indisputable that they are individual specific acts regulating relations inter partes. Given that the appraisal of the constitutionality and legality of the individual, concrete acts is not within the jurisdiction of the Constitutional Court, and this case is about regulations that govern relations inter partes, that is, individual acts, the Court found that the contested acts are not eligible for the constitutional court assessment.

Given that the acts being contested with part of the request do not have the character of an erga omnes regulation, according to the Court the procedural requirements for the application of the cited procedural provision for dismissing the initiative in this part are met.

6. Under Article 110 line 3 of the Constitution, the Constitutional Court of the Republic of Macedonia protects the freedoms and rights of the individual and citizen relating to the freedom of conviction, conscience, thought and public expression of thought, political association and activity, prohibition of discrimination against citizens on grounds of sex, race, religion or national, social or political affiliation.

Under Article 51 of the Rules of the Constitution of the Republic of Macedonia, each citizen believing that an individual act or action violated a right or freedom defined in Article 110 line 3 of the Constitution of the Republic of Macedonia may require protection by the Constitutional Court within 2 months from the date of serving the final or effective individual act, or the date of learning about the taking of an action that committed the violation, but not later than 5 years from the date of its taking. Under Article 52 of the Rules, the application should contain the reasons why protection is sought, acts or actions with which they are violated, the facts and evidence on which the application is based, and other data necessary for the decision-making of the Constitutional Court.

Under Article 28 line 3 of the Rules, the Constitutional Court shall dismiss the initiative if there are other procedural obstacles for decision-making on the initiative.

From the analysis of the constitutional and procedural provisions and the enclosed documents, according to the Court it is indisputable that the request for the protection of freedoms and rights in this concrete case was filed by a legal entity, the Association “Radko” – Ohrid, which is contrary to Article 51 of the Rules. In fact, one part of the initiative contains a request for the protection of the freedoms and rights, in the sense of Article 110 line 3 of the Constitution, which, according to the applicant – the Association “Radko” – Ohrid, were violated on grounds of discrimination in view of the other groups of citizens in the Republic of Macedonia, that is, on grounds of national-cultural self-identification.

However, the Court found that in terms of the said Article of the Rules, only a natural person, that is, a citizen may apply for the protection of the freedoms and rights set out in Article 110 line 3 of the Constitution, as a result of which the application is inadmissible from this aspect as well.

When building the legal opinion the Court had in mind the Judgment of the Supreme Court of the Republic of Macedonia Uzp.br.940/2010 of 17.05.2011, and the Judgment of the European Court of Human Rights adopted on the application of the Association of Citizens Radko & Paunkovski v. the Republic of Macedonia, with the number 74651/01, but finds that they do not have an impact given the fact that in the present case there are procedural obstacles for meritorious decision-making.

Considering the above, in this particular case there are procedural obstacles for the Constitutional Court to decide on the merits of the substance of the request, as a result of which the conditions for dismissal of the application in terms of Article 28, line 3 of the Rules are met.

7. On the basis of the aforementioned, the Court decided as in items 1 and 2 of the present Resolution.

8. The Court took the present resolution in the following composition: Mrs Elena Gosheva, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Dalishta, Mr Nikola Ivanovski, Mr Jovan Josifovski, Mrs Vangelina Markudova, Mr Sali Murati, Dr Gzime Starova and Mr Vladimir Stojanoski. The Resolution regarding item 2 was taken with a majority vote.

U.br.138/2013                         
26 February 2014                     
S k o p j e                            
                                 

PRESIDENT
of the Constitutional Court of the Republic of Macedonia
Mrs Elena Gosheva

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