Decision U.no.211/2006

U.no.211/2006

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 5 November 2008, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. Article 32 paragraph 1, Article 51 paragraph 4 item 1 in the part: “or for a person who may provide notification about committed criminal offences or minor offences of for the perpetrators of such offences” and Article 97 paragraph 2 in the part: “for jobs with special duties and authorisations defined by the act for systematisation of the jobs in the police” of the Law on the Police (“Official Gazette of the Republic of Macedonia”, no. 114/2006 ARE REPEALED.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 initiatives submitted by Stamen Filipov and Petre Ilievski from Skopje, the Constitutional Court of the Republic of Macedonia with its Resolution U.no.211/2006 of 4 July and 19 December 2007 instigated proceedings for appraising the constitutionality of the provisions from the Law on the Police noted in item 1 of the present Decision.

The proceedings were instigated as there was a well-founded question raised before the Court regarding their harmony with the Constitution.

4. At its session the Court found that under Article 32 paragraph 1 of the Law on the Police, the police may restrict the basic freedoms and rights of the individual and citizen only under conditions and in a manner defined by the Constitution and by law.

Article 8 of the Constitution sets forth that the fundamental values of the constitutional order of the Republic of Macedonia, inter alia, are the basic freedoms and rights of the individual and citizen, recognised in international law and set down in the Constitution, the rule of law, and the respect for the generally accepted norms of international law.

Under Article 11 paragraph 1 of the Constitution, the human physical and moral dignity is inviolable.

Under Article 12 paragraph 1 of the Constitution, the human freedom is inviolable, and under paragraph 2 of this article no person’s freedom may be restricted except by a court decision and in cases and in a procedure defined by law.

Article 54 paragraph 1 of the Constitution sets forth that the freedoms and rights of the individual and citizen may be restricted only in cases defined by the Constitution, and under paragraph 2 of this article, the freedoms and rights of the individual and citizen may be restricted during states of war or emergency, in accordance with the provisions of the Constitution.

Starting from the content of the provision in Article 11 paragraphs 1 and 2 and Article 12 of the Constitution, it arises that freedom and moral integrity of the individual and citizen are generally accepted personal freedoms and rights guaranteed by the Constitution, and the mechanism of their ensuring is contained in the prohibition that no one may have his/her freedom restricted except by a court decision and in cases and in a procedure defined by law, as well as in the prohibition of any kind and form of torture, inhuman and degrading treatment and punishment.

From the analysis of Article 54 paragraphs 1 and 2 of the Constitution, which is in the part of the guarantees of basic freedoms and rights it arises that freedom and rights of the individual and citizen may be restricted only in cases defined by the Constitution, whereby a special condition for the restriction of certain right, and not all rights, are states of war and emergency.

Hence, given the noted constitutional provisions guaranteeing basic freedoms and rights of the individual and citizen and the envisaged mechanisms for their protection, it clearly arises that basic freedoms and rights are defined by the Constitution and the ground for their restriction must be in the Constitution. Thereby, the Constitution may foresee the scope of the restriction of certain freedom or right which is binding for the legislator, generally set down the scope to which the legislator may restrict the basic freedoms and rights. If the Constitution does not point to that, the basic freedoms and rights may not be regulated and restricted by law, but their content and restriction shall be determined through the comprehensiveness of the constitutional determinations and norms of the legal order as a presupposition for a real exercise of the freedoms and rights guaranteed by the Constitution.

Given that in this concrete case the challenged provision of Article 32 paragraph 1 of the Law provides a possibility for the police in the performance of their competences to restrict the basic freedoms and rights, the Court assessed that the foreseen competence leads to restriction of the basic freedoms and rights of the individual and citizen beyond the constitutional frameworks.

5. Also, the Court has found that under Article 51 paragraph 4 item 1 of the Law, a wanted circular is send out for a person for whom there are grounds to suspect to have committed a criminal offence or a minor offence, of for a person who may provide information about committed criminal offences or minor offences, or for perpetrators of such offences (challenged part).

Under Article 8 lines 1 and 3 of the Constitution of the Republic of Macedonia, the basic freedoms and rights of the individual and citizen, recognised in international law and set down in the Constitution, and the rule of law are, inter alia, the fundamental values of the constitutional order of the Republic of Macedonia.

Article 25 of the Constitution stipulates that each citizen is guaranteed the respect and protection of the privacy of his/her personal life and family life, and of his/her dignity and repute.

Under Article 51 paragraph 1 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.

In line with paragraph 2 of this Article, everyone is obliged to respect the Constitution and the laws.

Under Article 54 paragraph 1 of the Constitution, the freedoms and rights of the individual and citizen may be restricted only in cases defined by the Constitution.

Under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, 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.

Under Article 17 of the International Covenant on Civil and Political Rights, no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence, or to unlawful attacks on his honour and reputation.
Everyone has the right to the protection of the law against such interference or attacks.
Under Article 1 of the Universal Declaration of Human Rights, all human beings are born free and equal in dignity and rights.
Article 12 of the noted Declaration envisages that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such interference or attacks.
From the noted constitutional provisions, and particularly Article 25 of the Constitution of the Republic of Macedonia, as well as the noted international conventions, it arises that every citizen is guaranteed respect and protection of his/her privacy.

Respect for the personal life of the citizen is the basis to prohibit anyone from interfering with the personal conduct of the individual and with his/her choice, that is, the personal life is a private matter of the individual with which no one has the right to interfere, except in cases when the expression of the person and his/her conduct questions the generally accepted norms of society. The privacy of family life has similar characteristics, and that means that no one has the right to interfere with the relations within the family, between the spouses, between the parents and their children, the manner of life, family order, etc.

The respect for the dignity and repute of the citizen in itself does not contain only the obligation for people to respect one another in their interrelations, but also incorporates the role of the state which should guarantee the protection of privacy taking as a starting point the fact that as a human being is concerned he/she should be treated with respect for his/her dignity and repute.

Given the abovementioned, the Court assessed that the stipulation to send out a wanted circular for a person that may provide information about committed criminal offences or minor offences or for the perpetrators of such offences, as defined in Article 51 paragraph 4 item 1 of the Law, interferes with the privacy of the person and the protection, that is, the legal means for the protection of his/her privacy.

Given what has been noted, the Court found that the noted legal provision questions the protection of the fundamental freedoms and rights of the individual and citizen, as a result of which it is not in accordance with the Constitution.

6. At the same time, the Court established that under Article 97 paragraph 2 of the Law, as an exception there may be employment without a public notice “for jobs with special duties and authorisations defined by the act for the systematisation of the jobs in the police” and for persons receiving scholarship from the Ministry – graduates from the Police Academy.

Under Article 8 paragraph 1 lines 1 and 3 of the Constitution, the basic freedoms and rights of the individual and citizen, recognised in international law and set down in the Constitution and the rule of law, are the fundamental values of the constitutional order of the Republic of Macedonia.

Pursuant to Article 9 paragraph 2 of the Constitution, all citizens are equal before the Constitution and the laws.

In the part of the provisions in the Constitution relating to the economic, social and cultural rights, Article 32 paragraph 1 defines that everyone has the right to work, to free choice of employment, protection at work and material assistance during temporary unemployment. Under paragraph 2 of this article, every job is open to all under equal conditions, and under paragraph 5, the exercise of the rights of employees and their position are regulated by law and collective agreements.

Under 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.
The constitutional guarantee about the availability of every job to all under equal conditions is one of the fundamental rights of the citizen which is at the same time a guarantee for his/her economic and social safety and expresses the determination that every individual capable of work may exercise that right under defined conditions and objective possibilities and for any type of work.

According to the Court, the determination contained in the challenged part of Article 97 paragraph 2 of the Law on the Police puts citizens in an unequal position regarding the availability of the job. Namely, the filling of certain job without announcement means that some citizens are privileged and become employed easier without thereby having transparency and mutual competition.

On the basis of what has been noted, the Court found that Article 97 paragraph 2 in the part: “for jobs with special duties and authorisations defined by the act for systematisation of the jobs in the police” is not in accordance with the constitutional provisions which are called upon by the submitters of the initiatives.

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

8. The Court took the present decision in the following composition: Dr Trendafil Ivanovski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Ismail Darlishta, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Branko Naumoski, Mr Igor Spirovski, Dr Gzime Starova, and Dr Zoran Sulejmanov.

U.no.211/2006
5 November 2008
S k o p j e

Dr Trendafil Ivanovski
PRESIDENT
of the Constitutional Court of
the Republic of Macedonia

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