Decision U.no.31/2006

U.no.31/2006

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 1 November 2006, the Constitutional Court of the Republic of Macedonia made the following

DECISION

1. Article 1-a in the part: »and thereby the right of citizens not taking part in the public assembly of free movement and the other rights as defined by the Constitution of the Republic of Macedonia shall not be restricted« of the Law on Public Assemblies (»Official Gazette of the Republic of Macedonia«, nos.55/1995 and 19/2006) IS REVOKED.

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.31/2006 of 20 September 2006, upon the initiative of the political party Democratic Union from Skopje, instigated proceedings for the appraisal of the constitutionality of the part of the article noted in item 1 of this Decision, since there was a well-founded question as to its concordance with the Constitution.

4. At its session the Court found that the challenged Article 1-a of the Law on Public Assemblies envisages that the right of citizens to assemble peacefully may be exercised in a manner whereby they will peacefully express public protest and thereby the right of the citizens not taking part in the public assembly of free movement and the other rights as defined by the Constitution of the Republic of Macedonia will not be restricted.

5. Under Article 8 paragraph 1 line 1 of the Constitution, the basic freedoms and rights of the individual and citizen, recognised in international law and set down in the Constitution, are 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.

Pursuant to Article 16 paragraph 1 of the Constitution, the freedom of personal conviction, conscience, thought and public expression of thought is guaranteed, while paragraph 2 of the same article guarantees, inter alia, the freedom of speech and public address.

Under Article 21 paragraph 1 of the Constitution, citizens have the right to assemble peacefully and to express public protest without prior announcement or a special licence. Under paragraph 2 of this article, the exercise of this right may be restricted only during a state of emergency or war.

Under Article 27 of the Constitution, every citizen of the Republic of Macedonia has the right of free movement on the territory of the Republic and freely to choose his/her place of residence.

Under Article 51 paragraph 1 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.

Under Article 54 of the Constitution, the freedoms and rights of the individual and citizen can be restricted only in cases set forth by the Constitution. The freedoms and rights of the individual and citizen can be restricted during states of war or emergency, in accordance with the provisions of the Constitution. The restriction of freedoms and rights cannot discriminate on grounds of sex, race, colour of skin, language, religion, national or social origin, property or social status. The restriction of freedoms and rights cannot be applied to the right to life, the interdiction of torture, inhuman and degrading conduct and punishment, the legal determination of punishable offences and sentences, as well as to the freedom of personal conviction, conscience, thought and religious confession.

Under Article 20 of the Universal Declaration of Human Rights, everyone has the right to freedom of peaceful assembly and association.

Under Article 21 of the International Pact for Civil and Political Rights, the right to peaceful assembly is recognised. The exercise of this right may only be the subject of such restrictions, envisaged in line with the law, that are necessary in a democratic society in the interest of national security, public safety, public order or with a view to protecting public health or morals or rights and freedoms of other persons.

Under Article 5 paragraph 1, item d (9) of the International Convention for Abolishment of All Forms of Racial Discrimination, member states undertake, inter alia, to guarantee everyone the right to equality before the law irrespective of race, colour of skin or national or ethnic origin, especially in view of the enjoyment of other civil rights, among which the right to freedom of peaceful assembly and association.

Under Article 15 of the Convention on the Rights of the Child, member states recognise the right of the child to freedom of association and freedom of peaceful assembly. Under paragraph 2 of this article, there may no restrictions whatsoever be imposed on the exercise of these rights except for those that are in line with the law and are necessary in a democratic society in the interest of national security or public safety, public order, protection of public health or morals or the protection of the rights and freedoms of others.

Under Article 11 paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. Under paragraph 2, no restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health and morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Under paragraph 9.2 of the Document from the CSCE Conference on Human Dimension in Copenhagen, each person has the right to peaceful assembly and demonstrations. Any possible restriction in the exercise of these rights is stipulated by law and in accordance with international standards.

The constitutional provisions referring to the right of citizens to peaceful assembly and expression of public protest are operationalised in the Law on Public Assemblies (»Official Gazette of the Republic of Macedonia«, no.55/95) as well as in the Law on Changing and Supplementing the Law on Public Assemblies (»Official Gazette of the Republic of Macedonia«, no.19/2006).

Pursuant to Article 1 of the Law, this Law regulates the manner of exercise of the rights of citizens to public assembly for the purposes of peaceful expression of opinion and public protest, as well as the cases when the holding of a public assembly is interrupted.

Under Article 1-a of the Law that is disputed with the initiative, the right of citizens to assemble peacefully may be exercised in a manner whereby they will peacefully express public protest and thereby the right of citizens not taking part in the public assembly to free movement and the other rights as defined by the Constitution of the Republic of Macedonia shall not be restricted.

Pursuant to Article 2 of the Law, public assemblies of more than 20 citizens are defined as assemblies in an open or closed space for the purposes of realising entertainment, cultural, religious, humanitarian, social, political, economic, sports or similar interests of the citizens, organised in order to express opinion or protest publicly.

Article 3 of the Law stipulates that for security interests the organiser of the public assembly may notify the Ministry of the Interior about the holding of the public assembly and the measures undertaken for its holding.

The organiser notes the following data in the notification: the purposes of holding the public assembly; the time and place of its holding; the organiser of the public assembly; the measures the organiser has undertaken in connection with an unobstructed taking place of the public assembly, and the data about the organisation of the guard service.

Under Article 4 paragraph 1 of the Law, for the purposes of protecting the rights of citizens, the normal traffic, the supply of the population with medicine, food, fuel and similar necessities that cannot be delayed, as well as with a view to observing the obligations from international agreements, the organiser of the public assembly is obliged to ensure the maintenance of the order at the public assembly and to organise a guard service.

Under paragraph 2 of the same article, if the organiser requests, and the Ministry of the Interior assign the police to see to ensuring the maintenance of the order at the public assembly, the costs for that ensuring are paid by the organiser.

Paragraph 3 of this article in the Law envisages an obligation for the organiser to interrupt the holding of the public assembly in case the life and health, security and personal safety of people and property is threatened and to promptly inform the Ministry of the Interior thereof.

Article 5 of the Law prohibits the persons attending the public assembly from carrying weapons and generally dangerous things, such as alcoholic beverages and narcotic drugs.

Article 6 of the Law provides for the cases when the Ministry of the Interior interrupts the holding of the public assembly (in the cases when the same is directed at endangering the life, health, security, personal safety and property of citizens; committing or instigating criminal offences defined by law and threatening the environment). Under paragraph 2 of this article in the Law, the Ministry of the Interior shall interrupt the holding of the public assembly in case when its holding is in contradiction with the international agreements that envisage an obligation for an unobstructed traffic development.

Articles 9 and 10 of the Law prescribe misdemeanour liability for legal and natural persons for a violation of the obligations arising from the Law.

6. In the analysis of the challenged provisions from the Law on Public Assemblies, the Constitutional Court takes as a starting point the fundamental character of the right, that is, the freedom of peaceful assembly as one of the basic rights in a free and democratic society. The right of the citizen to assemble with others without any obstruction and without any special licence is a symbol of freedom, independence and maturity of the citizen in a society that is a direct expression of human personality and one of the highest ranked human rights. Given that the freedom of assembly is a kind of collective expression of opinions and convictions, the exercise of this right enables continuous debate and clash of opinions as a vital element of the democratic state order.

Applied to political events and processes, this right is an expression of the citizens’ sovereignty, that is, the citizens’ democratic right to take part in the political process that is not exhausted only by voting in the elections, but also by the citizens’ influence on the formation of the political opinion as a continuous process, which in a democratic society should be realised freely, openly and in principle without intervention of the state. The assemblies of citizens are an essential element of democratic openness, they provide a possibility to exert a public influence on political processes and decision-making on issues of public interest, on the development of pluralist initiatives and alternatives, and even on public criticism and protest, and as such contain elements of direct democracy.

Despite the high ranking of the freedom of assembly in the corps of fundamental freedoms and rights of the citizen, the freedom of assembly in European legal culture is not an absolute right, which is obvious from the insight into the regulation of many states, as well as from international acts. This especially refers to assemblies that take place in outdoor public places, where due to the contact with the outside world it is usual to have regulation in order to create the necessary preconditions for the exercise of the very right to public assembly, on the one hand, and in order to maintain, that is, protect the rights and interests of others, which rights may very often collide. That is an expression of the validity of the general principle that the freedoms and rights of others are a limit for the exercise of the individual right and freedom, certainly when it comes to rights and freedoms that are capable of violating other ones. That principle is notably expressed in the European Convention for the Protection of Human Rights and Fundamental Freedoms, which is exceptionally important for the domestic legal order.

The Republic of Macedonia ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1997, and it was published in the Official Gazette of the Republic of Macedonia no.11/1997. Pursuant to Article 118 of the Constitution of the Republic of Macedonia, with the act of ratification it became and integral part of the legal order of the Republic of Macedonia.

From the formulation of paragraph 2 Article 11 of the European Convention for Human Rights as well as from the case-law of the European Court for Human Rights it arises that the Convention allows to place restrictions on the exercise of the right to a peaceful assembly only by law and only if that is necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

Unlike Article 11 paragraph 2 of the European Convention, the Constitution of the Republic of Macedonia in Article 21 paragraph 2 notes a state of emergency or war as circumstances when it is possible to restrict the exercise of the right to assemble peacefully and to express public protest. A constitutional basis for restriction of the freedoms and rights of citizens in a state of emergency or war is also contained in Article 54 paragraph 2 of the Constitution of the Republic of Macedonia. Thereby, the Constitution defines certain conditions, that is, prohibitions, such as the restriction of freedoms and rights may not be discriminatory, and cannot be applied to the right to life, the interdiction of torture, inhuman and degrading treatment and punishment, the legal determination of punishable offences and sentences, as well as to the freedom of personal conviction, conscience, thought and religious confession.

The provision in Article 54 paragraph 2 of the Constitution, according to the interpretation of the Court, allows temporary derogation, that is, suspension of the exercise of the constitutionally guaranteed freedoms and rights, and because of extraordinary circumstances that exist during states of war or emergency. In that sense, the constitutional provision in Article 21 paragraph 2 refers to those cases when in states of war or emergency there may be an interim prohibition to hold peaceful assembly and to express public protest.

The absence of an explicit constitutional provision regarding the possibility of restricting the exercise of the right to assemble peacefully in regular, that is peacetime conditions, in the opinion of the Court, should not be interpreted in the sense that the right to assemble peacefully in regular circumstances is an absolute right that is exercised without any limits whatsoever and without any respect for the freedoms and rights of others. Such principle of absolute exclusivity exists neither in the European nor in international context, and the Court holds that it may not be established under the Constitution of the Republic of Macedonia either.

From Article 8 paragraph 1 line 1 of the Constitution, under which one of the fundamental values of the constitutional order are the basic freedoms and rights of the individual and citizen recognised in international law and defined by the Constitution, taking into consideration the meaning of the European Convention for the Protection of Human Rights and Fundamental Freedoms not only as part of the internal legal order of the Republic of Macedonia, but as a result of the general principles on which it lies and which it promotes, the Court judged that the interpretation of Article 21 of the Constitution should be based on those legal principles.

Hence, according to the Court, the freedom to assemble peacefully should be observed in the context of the other fundamental human freedoms and rights and protected public interest. This especially for the fact that interference in the exercise of the freedom of assembly may jeopardise the constitutionally guaranteed freedom of conviction and expression, but also concomitantly the manner of realisation of the right to assemble peacefully may obstruct or restrict the exercise of other constitutionally guaranteed rights. Such interweavement of the rights demonstrates that very often the line of division between what is necessary restriction of the right to public assembly in the function of protecting the other human rights, and what is a violation of the right to public assembly and expression is very subtle and thin.

Because of these very reasons, in the opinion of the Court, each restriction of the exercise of the freedom of public assembly must pass the test of proportionality, there must be a fair balance reached between the right of citizens exercising the freedom to assemble peacefully and the rights and interests of other citizens, that is, the other values and protected public interest as a legitimate goal of the restriction.

Thereby, one must consider that almost as a rule public assemblies always cause certain inconveniences for part of the public, that is, the citizens not taking part in them. However, the limitation of the right to assemble peacefully is justified only when it is necessary to protect a defined and stipulated public interest, that it when these inconveniences assume the character of a serious violation of the values that are public interest, as well as the freedoms and rights of others.

7. Taking into consideration these observations, what was disputable for the Court was the question whether the line of the right to assemble peacefully as defined in the contested Article 1-a is a restriction of the right to assemble peacefully as guaranteed in Article 21 of the Constitution of the Republic of Macedonia.

From the wording of the contested provision in Article 1-a it derives that it defines the manner in which citizens may exercise the right to assemble peacefully. Given the contents of the provision (which actually attaches to Article 1 of the Law on Public Assemblies under which this law governs the manner of exercise of the right of citizens to assemble peacefully in order to express opinion and public protest peacefully, as well as the cases when the holding of a public protest may be interrupted) and its place in the Law, it could be concluded that it is not a provision restricting the right of citizens to assemble peacefully, but a general provision defining a general principle for holding peaceful public assemblies, by observing the rights of citizens not taking part in the public assembly.

From this line of analysis of the challenged provision it would arise that in the Law on Public Assemblies the legislator, observing the constitutional right of citizens to assemble publicly, allowed this right to be exercised in a manner that enables at the same time to protect the rights of citizens, notably the right to free movement which is also guaranteed by the Constitution. That the intention of the legislator with this provision was not to restrict the right to assemble peacefully would also stem from the fact that the legislator did not word the provision in the form of obligation, nor did it envisage sanctions, that is, misdemeanour responsibility for its possible violation.

However, the manner in which the contested provision is worded is quite different from that in paragraph 1 Article 11 of the European Convention for Human Rights, as a result of which before the Court a question arose as to whether the legislator has managed in an understandable way to determine the intensity of the restriction of other freedoms, notably the freedom of movement, as a ground for “dispersing” the assembly. Namely, Article 11 paragraph 2 of the Convention insists on establishing a “necessity” for restricting the right to assemble peacefully for the protection of other values and rights, which implies that the assembly has seriously endangered the other rights. The contested provision of the Law, according to the Court, does not contain such quality and directive for the competent authorities, but a general formulation that the public assembly should not restrict other freedoms and rights, and particularly the freedom of movement.

In this context, it is not the standpoint of the Court that the obstruction of the traffic in one street for several hours, whether be it in the form of a static assembly or in the form of a procession, could be restriction of the freedom of movement, if the assembly has a clear purpose to express a message, if there are other streets in the city along which one can pass, and the like. However, the challenged provision may easily be the basis for the competent authority to recognise restriction of the freedom of movement according to the reason of the traffic regulations even for the smallest obstruction of the traffic, exactly because this norm dos not contain a qualitative criterion or a directive about the necessity for restricting the assembly, and thereby a clear indicator that the aim of the law is for the assembly to succeed, and not to be disabled.

Accordingly, while the contested provision at first sight appears to be only a description about what an assembly should look like, in the opinion of the Court this provision in the second part contains too general grounds for its restriction to which the authorities can easily call upon. These grounds for restriction of assembly, in the absence of balancing criteria, present the right of assembly as a dangerous matter, which, according to the Court, may not be justified by anything.

8. Given the reasons noted, the Court found that the disputed provision in Article 1-a in the part: »and thereby the right of citizens not taking part in the public assembly of free movement and the other rights as defined by the Constitution of the Republic of Macedonia shall not be restricted«, from the Law on Public Assemblies is not in conformity with the Constitution, and in connection with the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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

10. 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 Vera Markova, Mr Branko Naumoski, Dr Bajram Polozani, Mr Igor Spirovski, and Dr Zoran Sulejmanov.

U.no.31/2006
1 November 2006
S k o p j e

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

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