Decision U.no.209/2020

U.no.209/2020

On the basis of Article 110 of the Constitution of the Republic of North Macedonia and Article 70 of the Rules of the Constitutional Court of the Republic of North Macedonia (“Official Gazette of the Republic of Macedonia” no.70/1992 and “Official Gazette of the Republic of North Macedonia” no.202/2019) at its session held on 23 September 2020, the Constitutional Court of the Republic of North Macedonia adopted the following

D E C I S I O N

1. The Decree with legal force amending the Decree with legal force for application of the Law on Construction Land during a state of emergency, no.44-5217/1 of 9 June 2020 (“Official Gazette of the Republic of North Macedonia” no.154/2020 ) SHALL BE ANNULLED.

2. The Decision for stopping the execution of the individual acts or actions adopted, that is, undertaken on the basis of the Decree with legal force noted in item 1 of this Decision shall be null and void.

3. This Decision shall generate legal effect from the day of its publication in the “Official Gazette of the Republic of North Macedonia”.

4. With its Decision U.no.209/2020 of 8 July 2020, the Constitutional Court of the Republic of North Macedonia initiated a procedure for assessing the constitutionality of the Decree with legal force amending the Decree with legal force for application of the Law on Construction Land during a state of emergency no.44-5217/1 from 9 June 2020 (“Official Gazette of the Republic of North Macedonia” no.154/2020). At the same time, pending a final decision, the Court suspended the execution of the individual acts or actions undertaken on grounds of the disputed decree.

5. At its session the Court found that on the basis of Article 126 paragraph 1 of the Constitution of the Republic of North Macedonia and Article 36 paragraph 1 of the Law on the Government of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia” Nos. 59/2000, 12/2003, 55/2005, 37/2006, 115/2007, 19/2008, 82/2008, 10/2010, 51/2011, 15/2013, 139/2014, 196/2015, 142/2016, 140/2018 and Official Gazette of the Republic of North Macedonia ”No.98/2019), the Government of the Republic of North Macedonia, at its session held on 9 June 2020, adopted the following

DECISION WITH LEGAL FORCE TO AMEND THE DECISION WITH LEGAL FORCE TO APPLY THE LAW ON CONSTRUCTION LAND DURING A STATE OF EMERGENCY

Article 1

Two new Articles 2-a and 2-b are added following Article 2 in the Decree with legal force for application of the Law on Construction Land during a state of emergency (“Official Gazette of the Republic of North Macedonia” No.90/2020), which shall read:

“Article 2-a

The construction land envisaged by the urban plan or urban planning documentation for a beach, which was subject to a short-term lease, and the time limit for short-term lease has expired or the short-term lease contract has been terminated prematurely, shall be restored to its original condition by the lessee and further performance of activity by the lessee shall be prohibited”.

Article 2-b

“Supervision over the performance of the activity within the construction land envisaged by the urban plan or urban planning documentation for a beach shall be carried out by the State Market Inspectorate and the Public Revenue Office, and the lessee’s failure to act in accordance with Article 2-a of this decree shall be a ground for the State Market Inspectorate to close the facilities”.

Article 2

This Decree with legal force shall enter into force on the day of its publication in the “Official Gazette of the Republic of North Macedonia”, and shall be applied until 31.12.2020.

No.44-5217/1                                                                                                                                                                                                        President of the Government
9 June 2020                                                                                                                                                                                                    of the Republic of North Macedonia,
Skopje                                                                                                                                                                                                                  Oliver Spasovski, (signed)

6. Pursuant to Article 110 lines 1 and 2 of the Constitution, the Constitutional Court of the Republic of North Macedonia decides on the conformity of the laws with the Constitution and on the conformity of other regulations and collective agreements with the Constitution and the laws.

Under Article 8 paragraph 1 line 3 of the Constitution, the rule of law is a fundamental value of the constitutional order in the Republic of North Macedonia.

Pursuant to Article 51 of the Constitution, in the Republic of North Macedonia the laws must be in accordance with the Constitution, and all other regulations with the Constitution and the law. Everyone is obliged to respect the Constitution and the laws.

Pursuant to Article 63 paragraph 6 of the Constitution, the Assembly shall be dissolved if the majority of the total number of Representatives so decides.

In the part of the Constitution which refers to “Defence of the Republic, state of war and state of emergency”, Article 125 stipulates: “State of emergency occurs when major natural disasters or epidemics occur (paragraph 1); The existence of a state of emergency on the territory of the Republic of North Macedonia or its part is determined by the Assembly upon the proposal of the President of the Republic, the Government or at least 30 Representatives (paragraph 2); The decision determining the existence of a state of emergency is made by a two-thirds majority vote of the total number of Representatives and is valid for a maximum of 30 days (paragraph 3); If the Assembly cannot convene, the President of the Republic decides on the existence of a state of emergency and submits it to the Assembly for confirmation as soon as it is able to convene (paragraph 4).

According to Article 126 of the Constitution, in case of a state of war or state of emergency, the Government in accordance with the Constitution and the law, adopts decrees with legal force (paragraph 1); The authorisation of the Government to adopt decrees with legal force lasts until the end of the state of war or state of emergency, which is decided by the Assembly (paragraph 2).

The Assembly of the Republic of North Macedonia, at its session held on 16 February 2020, adopted a Decision on the dissolution of the Assembly of the Republic of North Macedonia (“Official Gazette of the Republic of North Macedonia” no.43/20120).

In conditions when the Assembly is not dissolved, it can make a decision determining the existence of a state of emergency, with a two-thirds majority vote of the total number of Representatives and is valid for a maximum of 30 days in accordance with Article 125 of the Constitution.

However, if the Assembly cannot convene, the decision for the existence of a state of emergency is made by the President of the Republic who submits it to the Assembly for confirmation as soon as it can convene.

In this case, on grounds of Articles 125 and 126 of the Constitution of the Republic of North Macedonia, and on the proposal of the Government of the Republic of North Macedonia to the Assembly of the Republic of North Macedonia, the President of the Republic, established existence of a state of emergency on the territory of the Republic of North Macedonia for the purposes of preventing the introduction, spread and management of coronavirus COVID-19, and in line with the pandemic epidemic declared by the World Health Organization as a new type of virus that had spread to all continents and affected also the territory of the Republic of North Macedonia, no.44-2329/1 of 18.03.2020 and based on the notification from the President of the Assembly of the Republic of North Macedonia no.09-1690/2 dated 18.03.2020, the President of the Republic of North Macedonia made a decision determining the existence of a state of emergency no.526/2 dated 18.03.2020 (“Official Gazette of the Republic of North Macedonia”, no.68/2020). This decision was made in conditions when in the Republic of North Macedonia the Assembly was dissolved with the Decision of 16.02.2020. The President of the Republic also after the expiration of the declared state of emergency of 30 days made four consecutive decisions determining the existence of a state of emergency, number 08-607/2 of 16 April 2020 (“Official Gazette of Republic of North Macedonia” No.104/2020), No.08-682/2 of 16 May 2020 (“Official Gazette of the Republic of North Macedonia” No.127/2020), No.08-729/2 of 30 May 2020 (“Official Gazette of the Republic of North Macedonia” No.142/2020), and No.08-777/3 of 15 June 2020 (“Official Gazette of the Republic of North Macedonia” No.159/2020), valid until 23 June 2020.

Starting from the provisions of Article 126 of the Constitution that in case of a state of war or state of emergency the Government adopts decrees with legal force and this authorisation of the Government lasts until the end of the state of war or state of emergency which is decided by the Assembly, the right to adopt decrees with legal force is undisputed. This is because the Constitution clearly stipulates that when the Assembly is unable to meet, the President of the Republic may declare a state of emergency, that the decision to declare it is submitted for confirmation to the Assembly as soon as it can meet. The issue of enacting decrees with legal force in conditions of a state of emergency is related to the state of emergency and such authority is given to the Government undisputably by the Constitution. The issue from a constitutional-legal character if the Government has the authority to adopt decrees with legal force is not disputable since the Constitution grants such authority and there is a constitutional ground for that, especially since in the concept of the Constitution the Government remains on duty until the election of a new government even when its mandate has terminated due to the dissolution of the Assembly (Article 93 paragraph 5 of the Constitution) and the Assembly is dissolved if the majority of the total number of Representatives in the Assembly agrees (Article 63 paragraph 6 of the Constitution).

Hence, by decree with legal force, in case of a state of emergency, the Government may otherwise regulate certain issues that are regulated by applicable laws, may set new deadlines, may change existing ones and adopt new decisions. However, such powers are not unlimited. Namely, the Constitution has two constitutional restrictions on the authority of the Government to adopt decrees with legal force. The first one is for the decrees to regulate the necessary measures that are functionally related to directly or indirectly confronting and overcoming the causes and consequences of the state of emergency, taking into account that the measures have a legitimate aim, social justification, be reasonable and proportionate in light of as soon as possible restoration of the normal state (which will essentially satisfy Articles 125 and 126 of the Constitution). The second restriction is regulated in Article 54 of the Constitution, whose satisfaction requires that the restriction of freedoms and rights in a state of emergency cannot be discriminatory on the grounds of sex, race, skin colour, language, religion, national or social origin, property or social status. The right to life, the prohibition of torture, the inhuman and degrading treatment or punishment, the legal nature of the offences and punishments, as well as the freedom of belief, conscience, thought and religion may not be restricted in a state of emergency.

Article 15 paragraph 1 of the European Convention for the Protection of Human Rights stipulates that in the event of war or any other general danger endangering the life of a nation, any High Contracting Party may take measures that deviate from its obligations under this Convention, strictly in accordance with the requirements of the situation and provided that such measures do not conflict with other obligations arising from international law.

From the analysis of the Decree with legal force for amending the Decree with legal force for application of the Law on Construction Land during a state of emergency, no.44-5217/1 of 9 June 2020 (“Official Gazette of the Republic of North Macedonia” no.154/2020), the Court holds that it was adopted 14 days before the end of the state of emergency on 23 June 2020 and it adds two new articles, 2-a and 2-b which regulate rights and obligations in directly linked with entities related to the lease of construction land. The new provisions of the Decree with legal force require the construction land envisaged by the urban plan or urban planning documentation for a beach, and which was subject of a short-term lease that has expired or the short-term lease contract is terminated prematurely, to be immediately restored to its original condition by the lessee and further performance of the activity by the lessee is prohibited. Furthermore, it is regulated that the supervision over the performance of the activity within the construction land envisaged by the urban plan or urban planning documentation for a beach be carried out by the State Market Inspectorate and Public Revenue Office, and the failure on the part of the lessee to act is a ground for the State Market Inspectorate to close down the facilities.

The Court does not hold disputable the restriction of the rights for the purpose of health care in conditions of pandemic and declared state of emergency on the territory of the Republic of North Macedonia due to the coronavirus, which applies to all citizens.

However, keeping in mind the challenged decree with legal force, which amends the Decree with legal force for application of the Law on Construction Land during a state of emergency, what is disputable from a constitutional-legal point of view is the regulation of the rights and obligations from the subject matter in a way that is regulated, whereby it is also envisaged that this Decree with legal force will be applied until 31.12.2020, that is, also in a normal state in the society, which has nothing to do with prevention, dissemination, protection and dealing with Covid-19. Such regulation is not proportionate and does not justify the public interest in a democratic society, that is, it is not necessary to regulate rights and obligations of a legal matter within the competence of the legislature with a decree with legal force by the Government, in the field of social life in the sphere of property-legal relations with the construction land, whose regulation and settlement of the rights and obligations was and is a constant issue of relations within the legal system in a normal state.

The Court holds that the reason that is the ground for the adoption of decrees with legal force in a state of emergency, and that is the existence of a contagious disease, in this case cannot be a reason that justifies the regime regulated by the disputed Decree with legal force amending the Decree with legal force for the application of the Law on Construction Land during a state of emergency. The existence of a contagious disease cannot be justified as a necessary and legitimate regulation of the relations of the lessees of the construction land in the part of the beaches. Interference with legal regulations through decrees with legal force with the rights and obligations of the lessees of construction land, as well as in the authorisations, and in conditions of a general pandemic in which the citizens find themselves on the territory of the Republic of North Macedonia, could have a ground if there is a proportionality and connection of the restraint measures with the situation to achieve the set health goals to stop the spread of the epidemic. However, in this case the provisions of the disputed decree with legal force contain no measures but a regime of regulation of relations, and the disputed decree with legal force does not meet the criteria or justified reasons that would be aimed at protecting the public interest in the presence of an epidemic of infectious disease, due to which a state of emergency was declared in the country.

Hence, in the conditions of a contagious disease and the existence of a general danger of infecting the population, generally the measures with the decrees with legal force should refer to the restrictions of rights and obligations that are necessary for the protection of the public interest. However, this is not the case with the disputed decree and hence it is not in accordance with Article 8 paragraph 1 line 3 of the Constitution, as well as with Article 15 paragraph 1 of the European Convention for the Protection of Human Rights.

7. Starting from the above, the Court decided as in items 1 and 2 of this Decision.

8. This Decision was made by the Court composed of the President of the Court, Sali Murati and the judges: Naser Ajdari, Elena Gosheva, Nikola Ivanovski, Jovan Josifovski, Dr Osman Kadriu, Dr Darko Kostadinovski and Vangelina Markudova.

U.no.209/2020
23 September 2020
Skopje

PRESIDENT
of the Constitutional Court of the Republic of North Macedonia
Sali Murati