U.br.55/2013

U.br.55/2013

Вовед

On the basis of Article 110 of the Constitution of the Republic of Macedonia and Article 71 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 4 December 2013, the Constitutional Court of the Republic of Macedonia passed the following

RESOLUTION

Текст

1. NO PROCEDURE IS INITIATED for the appraisal of the constitutionality of Article 18 paragraph 2 line 7 of the Law on Political Parties (“Official Gazette of the Republic of Macedonia”, nos.76/2004, 5/2007, 8/2007, 5/2008 and 23/2013).

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

3. Goran Zafirovski from Skopje filed an application to the Constitutional Court of the Republic of Macedonia for instigation of proceedings to appraise the constitutionality of Article 18 paragraph 2 line 7 of the Law noted in item 1 of this Resolution.

Given the content of Article 1 paragraph 1 of the Law on Identity Card and Article 23 paragraph 1 of the Law on Citizenship, the applicant considers that the legislator did not have a ground to stipulate the contested legal norm for reasons that the provision of Article 20 of the Constitution does not envisage a possibility to stipulate the condition under which the founders should submit an original or photocopies from the certificates for citizenship certified by a notary with the application for registration of a political party in the court registry.

According to the applicant the contested legal provision unconstitutionally restricted the freedoms and rights of the individual and citizen, which is not in accordance with Article 54 paragraph 1 of the Constitution. This for a reason that citizens wishing to found political parties must also be pecuniary burdened with expenditures regarding the provision of a citizenship certificate or certification by a notary. Therefore, more than 1,000 founders may not be gathered or may be very difficult to gather.

Given what has been noted, the contested legal provision violated the provisions in Article 8 paragraph 1 lines 1, 3 and 5, Article 9, Article 20 paragraphs 1 and 2, Article 51 and Article 54 paragraph 1 of the Constitution.

4. At its session the Court established that under Article 18 paragraph 1 of the Law, a political party is obliged to submit, within 30 days from the date of the holding of the constitutive assembly, an application for registration in the court registry. The contested paragraph 2 item 7 inter alia envisages that “originals or photocopies of the certificates for citizenship of the founders certified by a notary” be enclose with the application for registration of the political party in the court registry (contested part).

5. Under Article 20 paragraph 1 of the Constitution, citizens are guaranteed the freedom of association to exercise and protect their political, economic, social, cultural and other rights and beliefs. Under paragraph 2 of this Article, citizens may freely found associations of citizens and political parties, join them, and leave them.

Under Article 54 paragraph 1 of the Constitution, the freedoms and rights of the individual and citizen may be restricted only in the cases defined by the Constitution, and under paragraph 3 of the same Article of the Constitution, the restriction of the freedoms and rights may not discriminate on grounds of sex, race, colour of skin, language, religion, national or social origin, property or social status.

Taking into consideration the said constitutional provisions invoked by the applicant, the Court believes that the stipulation of the obligation for the founders to submit a citizenship certificate or a photocopy of the certificate certified by a notary is not aimed at restricting the freedom of association and deterring and discouraging the citizens to appear as founders of a party but to check the credibility of the statements that a political party is founded by citizens of the Republic of Macedonia, which implies citizens of the Republic of Macedonia having a citizenship acquired pursuant to the Law on Citizenship.

Given what has been noted, the Court assessed that there are no grounds to express a suspicion that the challenged Article is not in accordance with the provisions of the Constitution which are invoked by the applicant.

6. On the basis of what has been stated, the Court decided as in items 1 and 2 of this Resolution.

           7. The Court passed this Resolution with a majority vote in the following composition: the President of the Court Elena Gosheva, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mr Nikola Ivanovski, Mr Jovan Josifovski, Mr Sali Murati, Mr Branko Naumoski, Dr Gzime Starova and Mr Vladimir Stojanoski.

U.br.55/2013                                  
4 December 2013               
S k o p j e                             
                                        

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

On the basis of Article 25 paragraph 6 of the Rules of Procedure of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.70/1992), upon my voting against the Resolution U.br.55/2013, adopted on 4 December 2013, for non-initiation of a procedure for appraising the constitutionality of Article 18 paragraph 2 line 7 of the Law on Political Parties (“Official Gazette of the Republic of Macedonia”, nos.76/2004, 5/2007, 8/2007, 5/2008, and 23/2013), I separate and explain in writing the following

S E P A R A T E   O P I N I O N

With the said Resolution, with a majority vote the Constitutional Court decided not to initiate proceedings for the appraisal of the constitutionality of Article 18 paragraph 2 line 7 of the Law on Political Parties (“Official Gazette of the Republic of Macedonia”, nos. nos.76/2004, 5/2007, 8/2007, 5/2008, and 23/2013) with an explanation that: “The Court believes that the stipulation of the obligation for the founders to submit a citizenship certificate or a photocopy of the certificate certified by a notary is not aimed at restricting the freedom of association and deterring and discouraging the citizens to appear as founders of a party but to check the credibility of the statements that a political party is founded by citizens of the Republic of Macedonia, which implies citizens of the Republic of Macedonia having a citizenship acquired pursuant to the Law on Citizenship.” With this stance the majority of the judges are of the opinion that there are no grounds to express suspicion that the challenged Article is not in accordance with the provisions of the Constitution which are invoked by the applicant.

Vis-à-vis the said arguments, and in particular in contradiction with the adopted decision I consider that the said provision should not remain in the legal order.

The case-law referred to in its paper is far from the expectations in this case. From the analyses of the case-law, specifically of U.br.35/2001 and U.br.173/11 sincerely speaking there are no points of contact with the application, that is, with this case.

Given that pursuant to Article 1 paragraph 1 of the Law on Identity Card (“Official Gazette of the Republic of Macedonia”, nos.8/1995, 38/2002, 16/2004, 12/2005, 19/2007, 10/2010, 51/2011 and 13/2012) it is defined that the identity card is a public document proving the identity, citizenship of the Republic of Macedonia, place of residence and address of the citizen of the Republic of Macedonia. Also, under Article 23 paragraph 1 of the Law on Citizenship of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, nos.67/1992, 8/2004, 98/2008, and 158/2011) the citizenship of the Republic of Macedonia is proven with a valid IDENTITY CARD OR PASSPORT.

I believe that in such conditions, the legislator did not have a ground to stipulate the challenged legal provision differently from the said provisions since the said provisions are very clear, express and regulate the documents with which the citizens in the legal circulation prove that are citizens of the Republic of Macedonia.

A citizenship certificate is a basic document with which the citizens acquire their identity card or passport. And pursuant to Article 1 of the Law on Identity Card “the identity card is a public document proving the identity, citizenship of the Republic of Macedonia…”, and thereby after acquiring an identity card or a passport they are the primary evidence for the citizenship, which is confirmed with Article 23 paragraph 1 of the Law on Citizenship of the Republic of Macedonia – “the basic document to prove the citizenship of the Republic of Macedonia is a valid identity card or a passport”.

On the other hand, in different procedures for registration before competent authorities an identity card or passport is submitted as a proof for citizenship. Pursuant to Article 183 of the Law on Trade Companies in the registration of different types of companies an identity card or passport of the domestic or foreign natural person is enclosed as a proof for the domestic or foreign company. The said documents prove whether certain founders are domestic or foreign founders. Also, in the registration of an association of citizens and foundations domestic and foreign natural or legal persons may appear as the founders. Pursuant to Article 42 of the same Law, an identity card of the founder is enclosed.

The contested legal line restricts the freedoms and rights of the individual and citizen contrary to the Constitution, which is not in accordance with Article 20 paragraphs 1 and 2 of the Constitution, under which (1) Citizens are guaranteed freedom of association to exercise and protect their political, economic, social, cultural and other rights and convictions. (2) Citizens may freely establish associations of citizens and political parties, join them, or resign from them. The said provision restricts the right to “freedom of association” of the citizens, and the contested provision is not in accordance with Article 54 paragraph 1 of the Constitution, under which “the freedoms and rights of the individual and citizen may be restricted only in cases defined by the Constitution”, and not by law, as it was done in this case, and the aim of the contested provision is to restrict the freedom of association and deter and discourage the citizens to appear as founders of a party.

From what has been stated, I consider that the challenged provision referred to in Article 18 paragraph 2 line 7 of the Law on Political Parties is not in accordance with the provisions in Article 8 paragraph 1 lines 1, 3 and 5, Article 9, Article 20 paragraphs 1 and 2, Article 51 and Article 54 paragraph 1 of the Constitution of the Republic of Macedonia and from the said arguments the Constitutional Court should have initiated proceedings for appraising the constitutionality of this provision.

Sali Murati
Judge
at the Constitutional Court of the Republic of Macedonia

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