Separate opinion

Separate opinion on the Decision U.no.19/2016

On the basis of Article 25 paragraph 6 of the Rules of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.70/1992), upon our voting against the Decision U.br.19/2016, adopted on 16.03.2016, for a repeal of the Law on Changing and Supplementing the Law on Pardons (“Official Gazette of the Republic of Macedonia”, no.12/2009), we 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With the said Decision, with a majority vote the Constitutional Court repealed the Law on Changing and Supplementing the Law on Pardon (“Official Gazette of the Republic of Macedonia”, no.12/2009). According to the Decision, the majority of the judges at the Constitutional Court are of the view that the Law on Changing and Supplementing the Law on Pardon is in its entirety contrary to Article 8 paragraph 1 lines 3 and 4 (the rule of law and the separation of state powers into legislative, executive and judicial as fundamental constitutional values), Article 9 (principle of equality of citizens in their rights and freedoms) and Article 84 line 9 (the President of the Republic of Macedonia grants pardons in accordance with the law) of the Constitution of the Republic of Macedonia.

The reasoning of the Decision is based on the initial conclusion that within the constitutional powers of the President of the Republic is also the right to give pardon, whereby it is provided the same to be done in accordance with law which operationalises this right in the procedure in which it is decided on granting pardon, defining the content of the right itself, the obligations of the other bodies involved in the procedure, the rights of the persons upon whose application pardon is requested, etc. What is thereby underlined is the view that the Law on Changing and Supplementing the Law on Pardon violates the above constitutional provisions and the President of the Republic’s right to grant pardon under his constitutional position as part of the executive power.

The majority of the judges also view the violation of the constitutional provisions in the limitation of the President of the Republic in granting pardon concerning persons convicted of: crimes against elections and voting, crimes against sexual freedom and sexual morality committed against children and minors, criminal offences against public health, crimes related to the illegal production and sale of narcotic drugs, psychotropic substances and precursors and crimes against humanity and international law. The majority of judges considers that although the aim of the legislator was to prevent from committing these specific criminal offences in the future, it cannot be a reason for restricting the right to grant a pardon. The way itself in which the crimes are defined by our criminal law (there is no division or gradation of offences but only grouping based on the social welfare being protected) does not give grounds for the legislator to exclude certain offences from the possibility of parole.

The Decision states that the court is the one which metes out the punishment and takes into account all mitigating and aggravating circumstances, while pardon is not an act having the character of punishment or other criminal sanction, but it only articulates more lenient attitude towards the offender. The President of the Republic does not decide in the capacity of a judicial body, but adopts an irrevocable and final act of mercy as a state body that takes its legitimacy from the citizens through direct elections. It is also stated that pardon is inviolable constitutional and legal right of the President of the Republic of Macedonia, which he may used on his own assessment within a procedure which is defined by law and for reasons that may not be of a criminal-legal nature, whereby it does not go into the factual and legal assessment of the court. It is thought that there is no division or gradation of criminal offences, and accordingly there should be no limit as to which criminal offences may not be pardoned.

The majority of judges believe that restricting the right to grant a pardon to the President of the Republic, means interference in its constitutional jurisdiction by the legislator. If the possibility for the legislator to have such a right is accepted, the question raised is what would be the limit and the criterion for such limitation and whether in this way the meaning of the constitutional institute pardon would be lost, which would depend on the perception of the legislator and some phenomena at a certain time in society. Therefore, the position of the majority judges is that the constitutional authority of the legislator under Article 84 line 9 of the Constitution to regulate pardon by law does not mean a possibility for it to define the crimes for which the President of the Republic may not give pardon.

Regarding the repealed Article 5, which stipulates that the President of the Republic of Macedonia with decision sets up a Commission on Pardons, determines the composition and number of members of the Commission and adopts rules on the manner of its work, the majority of judges believe that what this legislation makes problematic from a constitutional standpoint is that the legislator has no constitutional power to regulate matters relating to the internal organisation and work of the President of the Republic as one of the bodies of state power.

Contrary to the expressed attitude of the majority judges, we believe that the abolition of the Law on Changing and Supplementing the Law on Pardon is completely unfounded in terms of its assessment regarding the Constitution and that it is not contrary to Article 8 paragraph 1 lines 3 and 4, Article 9 and Article 84 line 9 of the Constitution of the Republic of Macedonia. We believe that it is seriously lacking a based and qualitatively reasoned argumentation, primarily with regard to the goal of complete abolition of the Law on Changing and Supplementing the Law on Pardon, but also arguments that (as it has been so far the long-standing common case-law of the Court) will explain the big cassation intervention of the Court individually by articles regarding the repealed provisions, and there is no such in this Decision.

It is evident that in its Decision the Court mostly deals with Article 1 of the Law on Changing and Supplementing the Law on Pardon and the justification of the cassation intervention for it, while the other articles which are also abolished are only listed without having a thorough analysis of their unconstitutionality.

If the majority judges in principle take as point of departure the logic that the impugned act does not respect the rule of law and separation of powers, the Decision should have been generally focused on that argument and should have elaborated it more consistently. Instead, the text of the Decision offers a combined approach, where it enters into interpretation of the unconstitutionality of only one article (Article 1) but it is evident to overlook others, which allows arbitrary intervention without adequate justification.

The President of the Republic of Macedonia is a constitutional authority has rights and duties stipulated by the Constitution of the Republic of Macedonia (Articles 79-87). “His work takes place within the Constitution and laws. Consequently, the President of the Republic is within the law”.* Based on the way in which this matter is regulated, the theory considers that the President of the Republic is not a sovereign as the monarch would be, but it is considered that his position must be fully regulated by the Constitution. “This is an important state function and personalised power within the law … he may not have rights and duties other than those listed in the Constitution.*

* Svetomir Shkarikj, scholarly interpretation – Constitution of the Republic of Macedonia, Skopje, Kultura, 2014.
* Idem, pp.350-351.

Under Article 79 paragraph 3 of the Constitution, the President of the Republic carries out his rights and duties on the basis and within the framework of the Constitution and laws, a fact that the decision does not elaborate at all, and which is the basis for all other constitutional provisions for regulating the responsibilities of the President. We think that what should be taken into consideration is the direct relation of this article with Article 84 which lists the powers of the President of the Republic of Macedonia, including line 7 – “appoints and dismisses other holders of state and public offices defined by the Constitution and in accordance with law”, and line 9 which states that he grants pardons in accordance with the law. The identical formulation as in line 9 is used in the same article in line 8 regarding the competence of the President to grant decorations and recognitions in accordance with the law, that is, these two lines are equal in their legal status and consequences. The Law on Awards and Recognitions of the Republic of Macedonia (48/2002, 24/2012) is an example of legislation that can be compared with the Law on Pardon in terms of the completely identical regulation in the Constitution, and in terms of which there is no question raised or “problem made” vis-a-vis the Constitution as it is done for pardon.*

* The decision of the Constitutional Court no.87/2005 abolished the words “and taking away” in terms of withdrawal of decorations and recognitions. Another law that regulates the rights pertaining to the President is also the Law on the Rights of the President of the Republic of Macedonia and his family after the termination of his office (46/2004, 109/2006, 157/2007).

Given that there is no other constitutional development of the competence for pardon under the Constitution, it is quite clear and understandable that the Constitution leaves everything about the pardon to be regulated by law. Thus, the view of the majority judges that the legislator has no constitutional power to regulate matters relating to internal organisation and work of the President of the Republic is not sustainable, since the Constitution evidently allows him that. In regulating the pardon by law the legislator does not exceed his constitutional powers, as the President is limited by the existing constitutional framework, that is, the legal procedure when granting pardons. What has been stated clearly indicates that inter alia the regulation of the pardon by law, that is, in accordance with the law, is inviolable and only belongs to the legislator (the Assembly) under Article 68 paragraph 1 line 2. Unfortunately, the Decision of the Constitutional Court does not show consistency in this direction and we believe that the articles of the Constitution specifying and referring to a particular matter to be regulated by law are deliberately not taken into consideration.
The Pardon Law (Official Gazette of the Republic of Macedonia 20/1993) and the now repealed Law on Changing and Supplementing the Law on Pardon (Official Gazette of RM, no.12/2009) actually converge and complement each other, forming a legal whole.*

* In considering the proposed amendments to the Law on Pardon, the Government in 2008 pointed out that the existing law has gaps arising from its practical application, and the need for more precise regulation of certain matters governed by the Law.

In this sense, when there should exist a legal basis for abolishing the Law on Changing and Supplementing the Law on Pardon as stated in the Decision, given the legal nature of the provisions of the Law on Pardon which state the same access to the regulated matter as the changes and supplements, then logically there should be intervention decision on that law as well by the Court on its own initiative.

The Law on Changing and Supplementing the Law on Pardon contained 13 changes and supplements to the 1993 Law on Pardon. The changes specify the provisions of the Basic Law, complete them and terminologically and editorially harmonise the law with other regulatory and legal terms.

Regarding the repealed Article 1 paragraphs 3 and 4, which exhaustively lists the persons convicted of certain criminal offences that cannot be pardoned (against elections and voting, against sexual freedom and sexual morality committed against children and minors, against public health regarding the illegal production and sale of narcotic drugs, psychotropic substances and precursors, and for crimes against humanity and international law), we believe that given the constitutional possibility of legislative discretion in the regulation of this issue by the Assembly, the Article should not have been repealed. The intention of the legislator is to hold dual preventive policy (one is threatened punishment under the law and the other is the inability of pardon for the offence) in determining which crimes would be excluded from the possibility for their perpetrators to be pardoned, that is, to standardise the public interest of the citizens and determine the prioritized gradation of social danger of its choice, is the rights of the legislator which explicitly emanates from the Constitution.

We also believe that the repealed paragraph 3 of Article 1 does not violate the constitutional right of equality of citizens under Article 9 of the Constitution. Contrary to the position stated in the Decision, we consider that when it comes to specific crimes it is not about the different treatment of persons having the same status (convicted persons) and being in the same legal situation, because it is about people who have committed various criminal offences that entail different criminal liability in conformity with the nature of the offence. At the same time, all the perpetrators of these specific crimes are mutually equal, each in himself/herself in terms of a particular group of offences, in their inability to get pardon, which means that within their own group they are identically that is equally treated. We consider that making the equality a problem to justify the repeal of this provision is pointless since equality is not questioned. Namely, we consider that the right to pardon is not a right that should be equally given to all, but it is just a possibility that depends on the assessment and mercy of the President. In the spirit of Article 9 of the Constitution, we believe that it is not about a right or freedom to raise the question of inequality or discrimination, but only a discretionary right of the President of the Republic.

Regarding the repealed provision of Article 1 paragraph 4 which refers to the inability for the President of the Republic of Macedonia to grant pardon to a person who is a citizen of the Republic of Macedonia and is serving a sentence in the Republic of Macedonia but was convicted by a judgment of an international criminal court for crimes against humanity and international law (Articles 403-422 of the Criminal Code), we believe that in the context of the fundamental value of the rule of law the majority of judges had to have regard to Article 8 line 11 of the Constitution, that is, the respect of generally accepted norms of international law to which the Republic of Macedonia is bound by all international conventions it has ratified and which are an integral part of the domestic legal order. Although in line with international principles of law the Criminal Code for such offences also foresees no statute of limitations in criminal prosecution and statute of limitations of the punishment (Article 112), the Decision provides no comment whatsoever on the repeal of this provision. Therefore, we believe that there is not only a concern but also a real possibility for a violation of international public law by this Decision because of the future legal consequences that it will generate.

Linked with this question is the puzzling absence of any reasoning for the cassation intervention of Article 1 paragraph 2 which provided that “the President of the Republic of Macedonia grants pardons also for criminal offences prescribed by the criminal law of another state, if the offender is a Macedonian citizen and is serving his/her sentence  in the Republic of Macedonia based on the execution of a criminal judgment of a foreign or international court, if it is determined by international treaty, or if reciprocity exists, or if the sanction is imposed also by the domestic court under the Criminal Code”, given its connection with Article 121-a of the Criminal Code, but also with the still possible mitigating circumstances for the person requesting the pardon which were referred to in this provision, and which now do not exist.

The Decision contains no explanation for the repeal of Article 2 (supplement to Article 1, which in detail regulates the types of pardon which the President could give), Article 4 paragraph 3 (supplement to Article 5, which details the procedure for referral of the application for pardon) and Article 5 which regulates the establishment and the principles for work of the Commission for Pardons.

The Decision does not list either the reasons for the found discrepancy with the Constitution of the provisions that further specify the pardon procedure, namely Article 6 paragraphs 2 and 3, Article 7 paragraph 3, Article 8 and Article 9. They specify the deadlines for action of the participants/authorities and within 8 days, that is, within 30 days to achieve speed and efficiency in the process of pardon. The 1993 Law used the term “immediately”, but the legal changes specify exact deadlines for action of the penitentiary institution upon the receipt of the application within 8 days to report on the behavior of the convict, that is, within 30 days the court to submit the application with all the writs to the Ministry of Justice and then within 30 days to the President of the Republic. Given the nature of these provisions and the matter with which the provisions of the 1993 law are actually further regulated, we believe that the general stance of the majority of judges on the basis of which these provisions were repealed may correspond identically with the Basic Law as well.

There is an interesting conclusion in the Decision that the Criminal Code (Article 114 paragraphs 1 and 2 and Article 115) contains an identical definition of the content of the institute of pardon with Article 2 of the Law on Changing and Supplementing the Law on Pardon, which means there is an identical double legal regulation of this matter, but despite that this Article was abolished along with the other provisions.

Regarding the repealed article 5 (that is, 5-a) which governs the establishment, composition and the number and method of work of the Commission on Pardons, which is a body of technical support and advisory nature, we believe that the legislator has the constitutional authority to regulate this matter by law, in the manner required by the Constitution. In the system of control and balance of power primarily determined between the legislator and the President, the Commission also plays its role, which with its work according to law, administering the process channels the will of the President. It is clear that the final decision is made by the President while the Commission only prepares the proposals for pardon. At the moment, given the repealed Article 5, the legal gap is covered by the Decision on the organisation and scope of work of the Cabinet of the President of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia” no.30/2000), which made invalid the previous decision on the organisation and scope of work of the Cabinet of the President of the Republic of Macedonia of 1991 (“Official Gazette of the Republic of Macedonia” no.57/1991) which again has no basis for establishment, under the 1993 Law on Pardon. This basis was provided only in the repealed Law on Changing and Supplementing the Law on Pardon. Moreover, according to the comparative insights into more modern countries such commissions are foreseen with the objective not to make the discretionary right of the President for pardon without limits.

As an illustration, comparative experiences regarding the constitutional framework of pardon show some limitation on the authority which gives pardon. An interesting example is that of Belgium, where the king has the discretionary power to pardon, but the constitution provides limitation of that right and mechanisms to monitor the process of pardon. For example, if the person who committed a crime is convicted by the Supreme Court, the King cannot pardon him, unless the Parliament requests it. There are different procedures for pardon which vary in terms of whether the pardoned person is a private citizen or holder of public office. In Switzerland, pardon is governed in the constitution and the penal code, but when pardon is made by the Federal Assembly the explanation for pardon requires arguments that should be more elaborate than the usual personal difficulties (reasons) of the applicant. Spanish Constitution allows the king to pardon, but there are limitations in this authorisation of its which are regulated by law, under which the King can not pardon the President or other members of the government if they are convicted of criminal offences. The Spanish Constitution states that the right of pardon must be exercised in accordance with the law (Article 62 i), and the law does not allow a general, non-limited pardon. In order to make the process transparent, pardons are published in the Official Gazette. In the case of Bosnia and Herzegovina the Presidency gives pardon, and Article 3 of the Pardon Law states that the pardon may not be granted for criminal offences of genocide, war crimes and crimes against humanity.
From the comparative analyses and observations noted, what is observed is the trend in the world to limit the absolute discretionary right of the president in pardon. In certain countries this is achieved by foreseeing a Commission on Pardons, which aims at administratively limiting the discretionary right of the President for pardon, in other countries it is achieved through public review and control by publishing periodic and annual reports on the scope of pardons, and in some other countries even by limiting the types of criminal offences that may be pardoned. Finally, there are countries where there may also be litigation for approval or disapproval of pardon.

What is especially interesting is that by the repealing intervention of Article 10 of the Law on Changing and Supplementing the Law on Pardon the application of Article 11 of the Law on Pardons is restored, which stipulates that the President of the Republic as an exception can give pardon even without conducting a procedure for pardon prescribed by this law when it is in the interest of the Republic, or when special circumstances relating to the personality and the crime indicate that it is justified. Through the repeal of the changes in this Law this article reenters into force, and it allows the President to pardon certain person without ever conducting a legally prescribed procedure if he deems it justified.

Absurd and constitutionally unjustifiable is also the intervention on articles making terminological changes in articles from the basic text of the law, such as Article 1 paragraph 1 (the word “law” is replaced with the word “code”), Article 3 (the words “judiciary and administration” are replaced with the word “justice”, referring to the Ministry of Justice), Article 4 paragraph 1 (the word “Republic” is replaced with the words “Republic of Macedonia”), Article 7 paragraph 1 (the words “judiciary and administration” are replaced by the word “justice”), Article 11 (the word “law” is replaced with the word “code”), Article 12 (the words “judiciary and administration” are replaced with the word “justice”) as well as Article 13 which regulates when the law comes into force. With this cassation intervention the Constitutional Court re-institutes the old terms of state institutions that are no longer in the legal system, thereby violating Article 51 of the Constitution.

With this Decision the Constitutional Court directly violates the principle of separation of powers under Article 8 paragraph 1 line 4, extending the powers of the President laid down by the Constitution and law. The legislator has the right to govern this matter on its own which derives from Article 68 paragraph 1 line 2 and Article 84 paragraph 1 line 9 of the Constitution. Not only does the Constitutional Court create a norm with the adopted Decision, but also interferes into the constitutional powers of the legislative to enact laws, thereby going beyond its constitutionally defined responsibilities. With this Decision the Constitutional Court, which is the most called to protect the Constitution, violates the same, thereby questioning the rule of law.

Dr Natasha Gaber-Damjanovska
Judge at the Constitutional Court

Ismail Darlishta
Judge at the Constitutional Court

Sali Murati
Judge at the Constitutional Court

Dr Gzime Starova
Judge at the Constitutional Court

Decision U.no.19/2016

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