Based on Articles 110 and 112 of the Constitution of the Republic of North Macedonia and Article 70 of the Rules of Procedure of the Constitutional Court of the Republic of North Macedonia (“Official Gazette of the Republic of Macedonia” number 70/1992 and “Official Gazette of the Republic of North Macedonia” number 202/2019, 256/2020 and 65/2021), at the session held on 1 December 2022, the Constitutional Court of the Republic of North Macedonia adopted the following
DECISION
1. Article 44 Paragraph 2 in the section: “up to 65 years of age at the latest” of the Law on Social Protection (“Official Gazette of the Republic of North Macedonia” number 104/2019, 146/2019, 275/2019, 302/2020, 311/2020 and 163/2021) IS REPEALED.
2. The decision to stop the execution of the individual acts or actions taken on the basis of the article of the Law, indicated in point 1 of this decision IS OUT OF FORCE.
3. This decision produces a legal effect from the day of publication in the “Official Gazette of the Republic of North Macedonia”.
4. On the occasion of the initiatives submitted by Aleksandar Dolgoski from Prilep and the Institute for Human Rights from Skopje, through the attorney Igor Spirovski, a lawyer from Skopje, with Decision U. no. 27/2020 and 289/2020 of 17 November 2021, the Constitutional Court of the Republic of North Macedonia started a procedure for evaluating the constitutionality of the part of the article of the Law, indicated in point 1 of the Decision, because the question of its compliance with the Constitution was raised before the Court.
5. At the session, the Court determined that Article 44 Paragraph 2 of the Law on Social Protection (“Official Gazette of the Republic of North Macedonia number 104/2019, 146/2019, 275/2019, 302/2020, 311/2020 and 163/2021) regulates that compensation due to disability can be obtained by an individual who has reached 26 years of age, up to 65 years of age at the latest, used regardless of the age of the beneficiary, and is disputed with the initiatives in the section: “up to 65 years of age at the latest”.
6. According to Article 8 paragraph 1 indent 3 of the Constitution of the Republic of North Macedonia, the rule of law is a fundamental value of the constitutional order of the Republic of North Macedonia.
The equality of the citizens of the Republic of North Macedonia in freedoms and rights regardless of gender, race, colour of skin, national and social origin, political and religious beliefs, property and social status, as well as the equality of the citizens before the Constitution and laws, is guaranteed by Article 9 of the Constitution.
According to Article 34 of the Constitution, citizens have а right to social security and social insurance determined by law and collective agreement.
Article 35 of the Constitution defines that the Republic provides for the social protection and social security of the citizens in accordance with the principle of social justice. The Republic guarantees the right of assistance to citizens who are infirm or unfit for work. The Republic provides particular protection to invalid persons, as well as conditions for their involvement in the life of the society.
According 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 in accordance with the Constitution and the law. Everyone is obliged to respect the Constitution and the laws.
According to Article 54 paragraphs 1 and 3 of the Constitution, the freedoms and rights of the individual and citizen can be restricted only in cases determined by the Constitution, whereby the restrictions of freedoms and rights cannot discriminate on grounds of sex, race, colour of skin, language, religion, national or social origin, property or social status.
Human rights of equality and non-discrimination are guaranteed by several international documents.
In Article 14 (prohibition of discrimination) of the European Convention for the Protection of Human Rights, it is determined as follows: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
With Article 1 (general prohibition of discrimination) paragraphs 1 and 2 of Protocol no. 12 to the Convention, it is determined that: 1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status; 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.
Part V, Article E (Non-discrimination) of the European Social Charter, revised in 1996, provides that: “The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status”.
The content of Article 14 of the European Convention for the Protection of Human Rights (as well as the other cited international acts) indicates that the range of categories to which the prohibition of discrimination applies, as well as the grounds for discrimination, does not stop with the specified protected characteristics, but there is space left open for protection against discrimination on other grounds, in addition to the ones listed.
The European Court of Human Rights interprets the term “other status” in such a way that it subsumes the following terms: sexual orientation, illegitimate child status, trade union status, military status, professional status, prison, incapacity, age, residence, geographic area, HIV seropositivity, financial or property status, religion, national or ethnic origin, language, etc.
The Charter of Fundamental Rights of the European Union in Article 20 of the Charter states that all are equal before the law, and in continuation with Article 21 (non-discrimination) of the Charter, refers to the prohibition of any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, affiliation of a national minority, property, birth, disability, age or sexual orientation.
Article 5 of the Law on Prevention and Protection from Discrimination (“Official Gazette of the Republic of North Macedonia”, number 258/2020) prohibits any discrimination based on race, colour, origin, national or ethnic affiliation, sex, gender, sexual orientation, gender identity, affiliation of a marginalized group, language, citizenship, social origin, education, religion or religious belief, political opinion, other belief, disability, age, family or marital status, property status, health status, personal characteristic and social status or any other basis (hereinafter: discriminatory basis).
According to Article 16 (principle of equal treatment and non-discrimination) of the Law on Social Protection (“Official Gazette of the Republic of North Macedonia” number 104/2019, 146/2019, 275/2019, 302/2020, 311/2020 and 163/2011):
(1) The beneficiary has the right to social protection, which is based on equal and equitable treatment.
(2) Any type and form of discrimination based on race, colour of skin, origin, national or ethnic affiliation, sex, gender, sexual orientation, gender identity, affiliation of a marginalized group, language, citizenship, social origin, education, religion or religious belief, political opinion, other belief, disability, age, family or marital status, property status, health status, personal quality and social status or any other basis in the completion of financial assistance from social protection and social services are prohibited as determined by this law.
(3) Protection against discrimination is provided in accordance with the Law on Prevention and Protection against Discrimination.
Among other things, the Law on Social Protection regulates the rights to financial assistance, including the right to compensation due to disability.
According to Article 4 paragraph 1 point 5) of the Law, a “person with a disability” is an individual who has long-term physical, intellectual, mental or sensory disorders that, in interaction with various obstacles, may prevent his full and effective participation in the society on an equal basis with the others.
From the above, it indisputably follows that in the exercise of rights from the sphere of social protection, citizens should be treated equally and equitably, as well as that any type and form of discrimination against citizens in the exercise of those rights is prohibited, including on the ground of the age.
Article 44 of the Law, which is dedicated to compensation due to disability, stipulates that:
(1) Compensation due to disability is provided to encourage social inclusion and equal opportunities for an individual who is:
– with severe or profound intellectual disability,
– with the most severe physical disability,
– a completely blind person and
– a completely deaf person.
(2) Compensation due to disability can be obtained by an individual who has reached 26 years of age, up to 65 years of age at the latest, and is utilised regardless of the age of the beneficiary.
(3) An individual from paragraph 1 of this article cannot exercise the right to compensation due to disability, if he uses civilian or military disability benefits in accordance with a law.
(4) An individual from paragraph 1 of this article cannot use the right to compensation due to disability, if by decision of the social work centre he/she is placed longer than 30 days in an institution for non-family social protection, foster family, organized living with support or in health or other institution for the period of accommodation.
The subject of dispute with the initiatives is article 44 paragraph 2 in the section: “up to 65 years of age at the latest” of the Law.
With paragraph 1 of Article 44 of the Law, it is regulated that compensation due to disability is provided to encourage social inclusion and equal opportunities for a person with a severe or profound intellectual disability, with the most severe physical disability, a person who is completely blind and a person who is completely deaf, of which it indisputably follows that the financial compensation due to disability is exclusively correlated with the state of disability, that is, it is intended for a person who is counted among persons with the described type of disability.
According to paragraph 2 of Article 44 of the Law, compensation due to disability can be obtained by an individual who has reached the age of 26, at the latest until the age of 65, and it is used regardless of the age of the beneficiary. From the content of this legal provision, part of which is contested by the initiatives, it follows that the state of disability, when it comes to the age of a person over 65 years of age, is not an essential factor in the realization of financial compensation due to disability, but the age itself.
From the content of the contested legal decision thus arranged, it follows that the capacity of claimants in a procedure for exercising the right to financial compensation due to disability can only have persons under the age of 65, and thus the opportunity to use it, and related to this, persons over 65 years of age cannot have the capacity of claimants, so individuals over 65 years of age are excluded in advance from access to the right to the compensation itself, and consequently from the possibility of using the compensation, regardless of whether after this age they are found themselves in a state of disability.
According to Article 46 paragraph 1 of the Law, the right to compensation due to disability is exercised on the basis of a concilium opinion from a first-level commission composed of three specialist doctors from an appropriate tertiary healthcare institution, and according to paragraph 4 of the said article of the Law, the individuals from Article 44 paragraph 1 of this law exercise the right to compensation due to disability, based on a permanent finding, assessment and opinion on the type and degree of disability issued by an expert authority, in a procedure in accordance with the general act of article 295 paragraph 2 of this law and a decision of the center for social work.
Taking into consideration the content of Article 44 paragraph 2 and its disputed part, it follows that it is not possible at all for an individual after the age of 65 to be a claimant for exercising the right to financial compensation, even though he may be counted among persons with a disability from paragraph 1 of article 44 of the Law. Consequently, age is the limiting condition for access to the right to financial compensation due to disability, and thus also a limiting condition for its use. This, although the individual may have a type of disability from paragraph 1 indents 1 – 4 of article 44 of the Law, but due to the established condition “age”, will not be able to achieve this.
Regarding this, it is indisputable that it is within the competence of the state to create and implement the social policy for the citizens depending on the material possibilities of the state, and in this regard, the legislator, based on the constitutional authorization, shall determine by law the rights of the citizens from the sphere of social protection as well as the manner and conditions under which citizens can exercise their social rights.
Nonetheless, in regard to the conditions under which citizens can exercise their social rights (or rights from other areas), the legislator has the obligation to establish in the Law the same conditions under which citizens will exercise their rights from the sphere of social protection, without discriminating citizens on the basis of race, colour, origin, national or ethnic origin, sex, gender, sexual orientation, gender identity, association to a marginalized group, language, citizenship, social origin, education, religion or religious belief, political opinion, other beliefs, disability, age, family or marital status, property status, health status, personal characteristic and social status or distinction on any other basis in the realization of financial assistance from social protection and social services.
In the specific case, the legislator did not follow the principles of equal and equitable treatment of citizens, conditioning the right to financial compensation due to disability with the age of the citizen in Article 44 paragraph 2 of the Law, which is exclusively intended for persons in a state of disability and which essentially qualifies them for compensation, precisely because of the disability itself, and makes sense only as financial assistance to individuals (all) in such a situation, regardless of their other personal characteristics.
The consequence of the contested legal decision is seen in the fact that the individual who had some type of disability from Article 44 paragraph 1 of the Law, but for some reason, did not request to exercise the right to compensation until the age of 65 (estimated that those funds at a given moment from life span, they are not necessary for him), they will not be able to achieve this, although perhaps exactly after 65 years of age, the compensation will be needed and necessary.
Also, this right will not be able to be exercised by the individual who, after the age of 65, has a state of disability from Article 44 paragraph 1 of the Law, regardless of the fact that every individual can, at any time, at any age of his life, suffer injuries or disorders that will count him among persons with some type of disability from Article 44 paragraph 1 of the Law, but according to the contested legal provision, that person will not be able to be a beneficiary of financial compensation due to disability.
According to the Court, individuals who are counted as persons with disabilities from paragraph 1 of Article 44 of the Law, constitute the only category of persons for whom the financial compensation due to disability is provided, because they are all in an analogous situation when it comes to disability, and with that, when it comes to access to the right to financial compensation due to disability, and its use.
Hence, the Court considers that the right to financial compensation due to disability, as a right, belongs to all individuals who are, or in the future may be counted as individuals with some type of disability from Article 44 paragraph 1 of the Law, whereby, their right is, whether and in what period of their life, they will request to exercise this right in a legally conducted procedure led by a competent authority, and thus to be beneficiaries of compensation.
The constitutional principle of equal treatment towards equals, regardless of the personal properties and characteristics of the citizens, their affiliation or conviction or any other condition or status, in the specific case, according to the Court, is violated by the prescription of the contested part of the article of the Law, with which essentially, on the basis of age, carries out an unfounded categorization of the only category of individuals with disabilities from paragraph 1 of article 44 of the Law, thereby illegitimately preventing some from being able to equally enjoy their social rights, regulated by the Law, which is why the Court assessed that the disputed legal solution violates the constitutional principle of equality of citizens before the Constitution and the laws from Article 9 paragraph 2 of the Constitution.
Considering that the Law with Article 16 guarantees equal and equitable treatment to citizens in access to rights from the sphere of social protection, as well as the prohibition of any type and form of discrimination in the realization of financial assistance from social protection and social services, including age, and from the disputed legal provision, it follows that they are still excluded from access to the compensation, precisely because of their age, which puts the subjects in a state of legal uncertainty, according to the Court, this arrangement in the Law brings into question the principle of the rule of law from Article 8 paragraph 1 indent 3 of the Constitution and the legal certainty of the citizens as its integral part.
Therefore, the Court took into account the allegations from the responses submitted by the proponent of the Law, that with the current law, more social services were available to people, however, according to the Court, the same cannot be accepted as a justification for the established criterion of age when exercising the right to financial compensation due to disability, on the one hand, because it is a matter of prohibited discrimination, which is seen in limiting and preventing access to the right to social assistance, equally for everyone, and on the other hand, according to Article 17 paragraph 2 of the Law, without the consent of the beneficiary, respectively his legal representative, no social service can be provided, except in cases established by law.
Also, the proposer of the Law, without a specific explanation, refers in the answers to the Law on Social Services for the Elderly (“Official Gazette of the Republic of North Macedonia” number 104/2019), however, the reference to this law is unclear, because from the same it cannot be seen that individuals with disabilities who are over 65 years old and have not exercised the right before, are offered an alternative opportunity to receive social benefits due to their disability.
In contrast to this specific situation, in which access to the right to financial compensation due to disability after the age of 65 is impossible and without an alternative for that impossibility, the part of paragraph 2 of Article 44 of the Law, which stipulates that the right to compensation can be performed by an individual who has reached the age of 26 (who is not contested by this initiative), is a consequence of the fact that in articles 33 to 35 of the Law on the Protection of Children (“Official Gazette of the Republic of Macedonia” number 23/2013, … 311/2020) provides essentially the same compensation with the same purpose (which used to be part of the Law on Social Protection), which was paid to the parents, respectively to the guardians of children with disabilities up to 26 years of age.
7. Taking into account the above, the Constitutional Court considered that the contested part “up to 65 years of age at the latest” from Article 44 paragraph 2 of the Law on Social Protection is not in accordance with Article 8 paragraph 1 indent 3 and Article 9 paragraph 2 of the Constitution of the Republic of North Macedonia.
8. Based on what was presented, the Court decided as in points 1 and 2 of the Decision.
9. This decision was adopted by the Court with a majority of votes composed of the President of the Court, Dobrila Kacarska, and the judges: Naser Ajdari, Tatjana Vasikj-Bozadzieva LLM, Osman Kadriu LLD, Darko Kostadinovski LLD, Vangelina Markudova and Fatmir Skender LLD.
U. no. 27/2020
U. no. 289/2020
1 December 2022
Skopje
PRESIDENT
of the Constitutional Court of the Republic of North Macedonia,
Dobrila Kacarska