Decision U.no.99/2006

U.no.99/2006

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 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 10 January 2007, the Constitutional Court of the Republic of Macedonia passed the following

DECISION

1. Article 29 paragraph 2 in the part “the amount and criteria” of the Law on Social Welfare (“Official Gazette of the Republic of Macedonia”, nos. 50/1997, 16/2000, 17/2003, 65/2004, 62/2005 and 111/2005) IS REPEALED.

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

3. Upon the initiative submitted by Stamen Filipov from Skopje, the Constitutional Court of the Republic of Macedonia with its Resolution U.no.99/2006 of 18 October 2006 instigated proceedings for appraising the constitutionality of the part of the Article noted in item 1 of the present Decision, since there was a well-founded question as to its concordance with the Constitution of the Republic of Macedonia.

4. At its session the Court found that pursuant to Article 29 of the Law on Social Welfare, persons that are fit for work and are socially unsecured, who under other regulations cannot provide means for existence, have the right to a social pecuniary relief. The more specific conditions, the amount, the criteria and the manner of exercise of the right to social pecuniary relief are defined by an act of the Government.

5. Pursuant to Article 1 of the Constitution of the Republic of Macedonia, the Republic of Macedonia is a sovereign, autonomous, democratic and social state.

Under Article 8 lines 3, 4 and 8 of the Constitution, the rule of law, the division of state powers into legislative, executive and judicial and humanism, social justice and solidarity are one of the fundamental values of the constitutional order of the Republic of Macedonia.

Pursuant to Article 34 of the Constitution, citizens have a right to social security and social insurance, determined by law and collective agreement.

Pursuant to Article 35 of the Constitution, the Republic provides for the social protection and social security of citizens in accordance with the principle of social justice. The Republic guarantees the right of relief to citizens who are infirm or unfit for work. The Republic provides particular protection for disabled persons, as well as conditions for their involvement in the social life.

Pursuant to 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.

Pursuant to Article 68 paragraph 1 line 2 of the Constitution, the Assembly of the Republic of Macedonia adopts laws and gives the authentic interpretation of laws.

Under Article 88 of the Constitution, the executive power is vested in the Government of the Republic of Macedonia. The Government exercises its rights and duties on the basis and within the frameworks of the Constitution and laws.

Under Article 91 line 1 of the Constitution, the Government of the Republic of Macedonia determines the policy of carrying out the laws, while under line 5 it adopts bylaws and other regulations for the execution of laws.

Pursuant to Article 1 of the Law on Social Welfare, the social care of citizens is vested in the Republic and it provides conditions for its realisation. The Republic establishes the system of social welfare and enables its functioning, provides conditions for the performance of social-protective activity and develops forms of self-relief.

Under Article 4 of this Law, social care is an organised activity on the part of the Republic with a view to preventing and overcoming basic social risks to which are exposed the citizen, the family and groups of population in the course of their life.

Pursuant to Article 6 of the same Law, on the basis of the rights to social care, and under the conditions defined by this Law, services are provided and measures are undertaken through which are realised: social prevention, extra-institutional protection and institutional protection and social relief for the users of social care.

The right to social relief, as one of the services and measures in social care and social work, pursuant to Article 20 of the Law, encompasses: constant pecuniary relief for the persons unfit for work but socially unsecured; social pecuniary relief for the persons unfit for work but socially unsecured; pecuniary compensation for relief and care; right to health care; compensation to a salary for reduced working hours owing to care for a handicapped child; one-time pecuniary relief or relief in kind, right to housing and pecuniary relief to a person who until the age of 18 had the status of a child without parents and parental care.

The constant pecuniary relief, as a right to social relief, is regulated by the provisions of Articles 21-28 of the Law, whereby what is defined is the category of the persons having a right to a constant pecuniary relief, and the amount of the constant pecuniary relief.

Article 29 of the Law stipulates that the persons fit to work but socially unsecured, who under other regulations cannot provide means of existence, whereby it is defined that the more specific conditions, the amount, the criteria and the manner of realisation of this right are defined by and act of the Government.

The pecuniary compensation for relief and care for another person is defined by the provisions of Articles 30, 30-a, 30-b, 30-c, 30-d, 30-e and 31 of the Law, whereby what is defined is the category of the persons being able to exercise this right, the amount of the pecuniary compensation, as well as the manner and procedure for the exercise of this right.

Article 32 of the Law prescribes the users of the right to health care, as a measure of social protection.

Article 33 of the Law establishes that the right to remuneration of a salary for reduced working hours owing to care for a severely handicapped child defined in the Law on Working Relations is exercised in the Centre for Social Work, defines the amount of this compensation, and stipulates that the minister of labour and social policy determine the manner of exercise of this right.

The one-time pecuniary relief and relief in kind, as a measure of social protection is regulated by Article 34 of the Law, whereby what is defined is the category of the persons being able to exercise this right, more specifically the type of relief and the highest amount of the one-time relief are specified, as well as the procedure for the exercise of this right.

Article 35 of the Law governs the right to housing of socially endangered persons – with no housing – defines the persons that can exercise this right, and defines that the criteria and the manner of exercise of the right to housing are stipulated by an act of the Council of the Municipality, of the City of Skopje, and of the municipalities of the City of Skopje, that is, the minister of labour and social policy, depending on whether it concerns persons users of social relief or persons without parents and parental care.

Articles 35-a and 35-b of the Law regulate the right to a pecuniary relief for a person who under the age of 18 had the status of a child without parents and parental care, more specifically defines who may be the user of this right, and defines the amount of the pecuniary relief.

Pursuant to Article 106 of the Law, the funds for the financing of the social care are provided from the Budget of the Republic of Macedonia, and from the budget of the municipality, of the City of Skopje, and of the municipalities of the City of Skopje in line with the provisions of this Law. The funds for financing social care, under Article 107 paragraph 1 of the same Law, are also provided from participation of the user and his/her relatives who are obliged to support him/her on the basis of other regulations through the charging for services, gifts, legacies and other sources pursuant to law.

Under article 108 of the Law, the funds from the Budget for the financing of social care are provided on the basis of a Programme for Realisation of Social Welfare which, pursuant to Article 2 of the same Law, is adopted by the Government of the Republic of Macedonia and with which what is defined are the areas of social care, specific needs of the population in these areas, and the manner of realisation of social care.

6. Given that the Constitution defines the Republic of Macedonia as a social state and stipulates that the Republic takes care of social welfare and social security of citizens in line with the principle of social justice, whereby citizens have the right to social security and social insurance defined by law and collective agreement, the legislator adopted the Law on Social Welfare whereby it defined that social welfare of citizens is vested in the Republic and it provides for conditions for its realisation.

From the analysis of the Law as a whole, and particularly the noted legal provisions, it derives that the legislator defined the right to social relief as one of the measures for social care and social security of citizens. This right is worked out in the Law in detail, whereby as concrete forms of social care are defined: constant pecuniary relief for persons unfit for work but socially unsecured; social pecuniary relief for persons fit for work but socially unsecured; pecuniary compensation for relief and care; right to health care; compensation to a salary for reduced working hours owing to care for a handicapped child; one-time pecuniary relief or relief in kind, right to housing and pecuniary relief for a person who until the age of 18 had the status of a child without parents and parental care.

From the further analysis of the Law it arises that in the working out of the forms of social relief, the legislator defined the possible users of the right to social relief in each concrete case, defined the amount of the pecuniary relief, and the manner and procedure for the exercise of this right.

The legislator made an exception from this principle, when working out the forms of social relief, while working out the right to social pecuniary relief for persons fit for work but socially unsecured. Namely, for this type of social relief, as well as for the other forms of social relief, the legislator defined the circle of persons that may exercise this right, and these are the persons fit for work but socially unsecured, who under other regulations cannot provide means of existence. In this sense, the legislator defined that the right to a social pecuniary relief may not be exercised by a person who may support himself/herself, who has not requested support from the person that is obliged to support him/her on the basis of the Law on Family, except if the centre for social work establishes that the person who is obliged by law to support him/her is not in a position to yield the support, who has not realised support on the basis of a concluded contract for life support, and has not initiated a procedure for breaching the contract, who has not submitted evidence that a procedure for allocation of the legacy of a testator in which he/she may appear as a heir pursuant to a law or in the course of the procedure he/she has not been accepted as a heir, or who may provide support on other ground. Furthermore, the Law specifies what is implied under a person who may support himself/herself in the sense of this law, and defines that this right may not be exercised by a person who has realised means of support by selling property or has given as a gift his/her property for the period for which the amount of the base for paying sales tax for immovable property corresponds to an amount of 120% of the average monthly net salary per worker in the Republic of Macedonia realised in the preceding year.

However, what deviates from the working out of the other forms of social relief defined in the Law, is that the Law does not contain provisions as to the amount in which this right to social pecuniary relief may be exercised. Instead, the legislator empowered the Government of the Republic of Macedonia to stipulate the more specific conditions, amount, criteria and manner of exercise of this right.

With such established actual facts of the case, a question arose before the Court as to whether the authorisation of the Government to define the criteria and the amount for determination and exercise of the social pecuniary relief for persons fit for work but socially unsecured, who under other regulations cannot provide means of existence, without the existence of legally defined framework for the criteria and the amount of this relief, if infringement of the executive upon the judicial power.

This for a reason that the Constitution exactly and precisely defines and establishes the holders of the legislative, executive and judicial power and clearly makes difference in the division of powers, whereby it is not allowed for one power to interfere into another power, but the power is positioned as a structure of autonomous relatively divided powers the status, competences and relations of which are defined and guaranteed by the Constitution.

Taking into consideration the noted, under the Court, the establishment of the criteria for the exercise of the social pecuniary relief and the amount of the social pecuniary relief may be defined by law only, and not by a bylaw, as it is envisaged in the contested article of the Law.

Namely, the realisation of the right to social pecuniary relief as a form of social relief which the Republic provides for citizens who are fit for work but materially unsecured in line with the principle of social justice, may be guaranteed only if the criteria for the exercise of this right and the amount of the pecuniary relief within the frameworks of which the concrete pecuniary relief is determined for the user of this right, are defined by law. This especially since the right to social security, through the forms of providing social relief, is in the corps of fundamental freedoms and rights of the individual and citizen defined by the Constitution of the Republic of Macedonia. In this sense, according to the Court the determination of the circle of users of the right to social pecuniary relief and the definition of the frameworks of the amount of the funds for pecuniary relief, are essential elements that define the right to social pecuniary relief and as such may be defined by law only. Without the definition of these elements it arises that the right to social pecuniary relief is stipulated declaratively only in the Law and the necessary conditions for its exercise do not exist, which may question the constitutionally guaranteed right to social security of citizens.

Hence, the Court assessed that the authorisation of the Government of the Republic of Macedonia set forth in the contested Article 29 paragraph 2 of the Law, to define the criteria and the amount of the social pecuniary relief, without having any legal framework for the exercise of this right, is not in the function of working out, that is, operationalisation of the legal provisions with a view to their execution, but it is infringement of the executive upon the legislative power. Consequently, the Court found that the contested provision is not in agreement with Article 8 paragraph 1 lines 3 and 4, Article 51, Article 68 paragraph 1 line 2 and Article 91 line 5 of the Constitution of the Republic of Macedonia.

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

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

U.no.99/2006
10 January 2007
S k o p j e

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

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