MOST IMPORTANT CASE-LAW (SUMMARY DECISIONS))

(published in the Regular Bulletin of the Sub-Commission for Constitutional Justice, affiliated with the European Commission for Democracy through Law, Venice Commission, Council of Europe)

MKD-2002-2-005
a) Republic of Macedonia / b) Constitutional Court / c) 17.07.2002 / d) U.br. 67/2002 / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 4/2002.

Keywords of the Systematic Thesaurus:

– Institutions – Executive bodies – Liability.
– Institutions-Federalism, regionalism and local self-government- Municipalities.
– Institutions – Armed forces, police forces and secret services.
– Fundamental Rights – Equality.
– Fundamental Rights – Civil and political rights – Rights of victims of crime.
– Fundamental Rights – Civil and political rights – Right to compensation for damage caused by the State.

Headnotes:
The protection of citizens against acts of violence or terror, public demonstrations or events aimed at undermining the constitutional order is a function which falls within the competence of the state, not within the competence of units of local self-government. Therefore the liability for damages resulting from death, physical injury or damage to or destruction of the property of a physical or legal entity, because of acts of violence or terror or acts committed during public demonstrations or events, cannot be the burden of the units of local self-government in which the damage has occurred, but must be the burden of the state, as previously established by the original text of the Law on Obligations.

Summary:
A lawyer from Skopje lodged a petition challenging the constitutionality of Article 3 of the Law Amending and Supplementing the Law on Obligations.

In making its decision the Court took into consideration Article 166.1 of the Law on Obligations. According to this provision, the state is liable for damages resulting from death, physical injury or damage to or destruction of the property of a physical or legal entity, because of acts of violence or terror or acts committed during public demonstrations or events. According to paragraph 2 of the same article, the organizers of, participants in, instigators of and aiders and abettors of acts of violence or terror or acts committed during public demonstrations or events that aim to undermine the constitutional order do not have the right to indemnity on these grounds. Furthermore, according to Article 166.3 of the Law, the state has the right and duty to seek compensation for the sum paid in damages from the person that caused the damage.

The impugned article of the amending law shifts the liability of the state to local self-government units.

[ENG-MKD-A-8] Articles 8.1.4 and [ENG-MKD-A-8] 8.4.9 of the Constitution provides for the separation of powers between the legislative, executive and judicial branches on the one hand and local self-government bodies on the other, as one of the fundamental principles of the constitutional order of the Republic of Macedonia, and according to [ENG-MKD-A-9] Article 9.2 of the Constitution all citizens are equal before the Constitution and the law.[ENG-MKD-A-115] Article 115.2 of the Constitution provides that municipalities are independent in exercising their powers as established by the Constitution and the law, and that supervision of the lawfulness of their work is carried out by the state. [ENG-MKD-A-115] Article 115.3 of the Constitution provides that the state can by law entrust the execution of certain tasks to municipalities.[ENG-MKD-A-122] Article 122 of the Constitution provides that the armed forces of the Republic of Macedonia protect the territorial integrity and independence of the Republic.

According to the list of competences of municipalities laid down in Article 22 of the Law on Local Self-Government, no such competences of local self-government bodies relate to protection against violence or terror, or protection to be ensured during public demonstrations or events. The Court also found that the allegedly unconstitutional provision included some elements of inequality of citizens, bearing in mind that, under this provision, the compensation that may be awarded for damages caused by the abovementioned actions depends on the financial capacities of the municipality where the damage has occurred. This means that, under the impugned provison, whether the citizen will be protected or adequately indemnified would depend on the financial capacities of the municipality, rather than its equal position on the territory of the Republic of Macedonia.

Bearing in mind all of the abovementioned provisions, the Court found that the impugned provision was unconstitutional and ordered the repeal of Article 3 of the Law Amending and Supplementing the Law on Obligations.

MKD-2002-2-004
a) Republic of Macedonia / b) Constitutional Court / / c) 10.07.2002 / d) U.br. 91/2002 / /e) Sluzben vesnik na Republika Makedonija (Official Gazette), 59/2000.

Keywords of the Systematic Thesaurus:

– Constitutional Justice – Constitutional jurisdiction – Relations with other institutions – Executive bodies.
– Constitutional Justice – Jurisdiction – Scope of review.
– Constitutional Justice – Jurisdiction – Types of litigation – Distribution of powers between State authorities.
– General Principles – Separation of powers.
– General Principles – Rule of law.
– General Principles – Weighing of interests.
– Institutions – Executive bodies – Powers.

Headnotes:
The Government is entitled to annul or repeal regulations or other acts of ministries, state administrative agencies and administrative organisations that are not in conformity with the Constitution, laws or other regulations made by the Assembly or the government. This competence is not considered to be an infringement of the competences of the Constitutional Court.

Summary:
An individual from Skopje lodged a petition to commence proceedings to review the constitutionality of an article of the Law on the Government. The petitioner challenged the constitutionality of this Law on the grounds that only the Constitutional Court has a right and duty to annul or repeal regulations that are not in conformity with the Constitution, laws or other regulations enacted or issued by the Assembly or the government. In the petitioner’s opinion, the impugned article violated Articles 8.1.3, 51, 91.1.5, 96, 110.2, 112.1 and 112.2 of the Constitution.

An analysis of the contents of the disputed article showed that the government competences it enumerates are different from those of the Constitutional Court.

In the Court’s opinion, the government, as an executive body in the system of separated powers, has a right and duty to annul or repeal regulations or other acts of ministries, state administrative agencies and administrative organisations, in cases where those regulations are not in conformity with the Constitution or with laws or other regulations enacted or issued by the Assembly or the government. This authority derives from the constitutional power of the government to supervise and control the activities and work of administrative bodies ([ENG-MKD-A-91] Article 91 of the Constitution). It remains within the context of the exercise of executive power, and by no means prevents the Constitutional Court from exercising its competences.

Accordingly, the Court dismissed the petition.

MKD-2002-1-003
a) Republic of Macedonia / b) Constitutional Court / / c) 24.04.2002 / d) U.br. 218/2001 / /e ) Sluzben vesnik na Republika Makedonija (Official Gazette), 31/2002.

Keywords of the Systematic Thesaurus:

– General Principles – Legality.
– General Principles – General interest.
– General Principles – Market economy.
– Fundamental Rights – General questions – Entitlement to rights – Legal persons – Private law.
– Fundamental Rights – Equality – Criteria of distinction – Citizenship.
– Fundamental Rights – Economic, social and cultural rights – Commercial and industrial freedom.

Headnotes:
It is legally impossible to invest private capital into a public water utility and consequently restructuring it as limited liability or joint stock company. Water supply and sewerage is not an activity that can be commercialised. The provision of the decision rendered by the city of Skopje violates the principle of freedom of market and entrepreneurship and the equal legal position of all market entities.

Summary:
The issue at stake was part of the conditions by the World Bank for giving the city of Skopje credit, according to which the Council of the city of Skopje could “use the credit only if a private international operator participates as a service provider in the sphere of water supply and sewerage, chosen by a tender process”.

The decision in dispute determined the use of the credit: the rehabilitation and extension of water supply and the sewage system, and for procuring equipment for maintaining communal hygiene in the city.

The Court upheld the alleged unconstitutionality and illegality of the provision in dispute and found it did not comply with [ENG-MKD-A-55] Articles 55, [ENG-MKD-A-56] 56 and [ENG-MKD-A-58] 58 of the Constitution and with several provisions stipulated in the Law on public utilities, the Water Law, the Law on public undertakings and the Law on Commercial Concessions.

According to [ENG-MKD-A-55] Article 55.1 of the Constitution, the freedom of the market and entrepreneurship is safeguarded. Paragraph 2 of this article obliges the State to ensure the equal legal position of all market entities and to take measures against monopolistic positions and conduct on the market.

According to [ENG-MKD-A-56] Article 56.3 of the Constitution, the law regulates the terms under which certain public amenities can be provided.

According to the Law on public utilities, water supply and sewerage can be performed by setting up a public undertaking (state- or locally-owned), by granting a concession (in a legally determined way) and by providing permission for performing such services. Public undertakings can be organised as limited liability or joint stock companies if private capital is invested in them, provided that individuals and legal entities can not invest in those undertakings providing water and sewerage services. The possibility for investing private capital into a public undertaking is granted for those providing other public utility services, except for water supply and sewerage.

The Water Law regulates that water, as a public commodity, enjoys special protection and is state owned. It also states that water can be provided by granting a time-limited concessionary right to domestic or foreign individual or legal entities, under terms determined by law. Such a possibility exists for the following services: production of electricity, fish-farming, lake traffic and tourist services.

The Law on Commercial Concessions determines the way and terms under which the public interest can be safeguarded for by granting commercial concessions. The provider of such concessions is the State, represented by the Government, which decides on the election of concessionaires by way of a public or direct tender. Thereby, all bidders are parties to the procedure.

In respect of the cited legislation, the Court stated that the public utilities of water and sewerage cannot be exercised by granting concessionary rights to private entities, which should invest money into the existing public undertaking and reorganise it as trade company. Also, the Court ascertained that the determination of the potential beneficiary of the public tender for exercising this service in advance (an international private operator) violates the principle of freedom of the market and entrepreneurship, as well as the equal legal position of all market entities ([ENG-MKD-A-55] Article 55 of the Constitution).

MKD-2002-1-002
a) Republic of Macedonia / b) Constitutional Court / / c) 13.02.2002 / d) U.br. 196/2001 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 16/2002.

Keywords of the Systematic Thesaurus:

– General Principles – Legality.
– General Principles – Publication of laws.
– General Principles – Prohibition of arbitrariness.
– Institutions – Judicial bodies – Legal assistance and representation of parties – The Bar – Powers of ruling bodies.
– Fundamental Rights – Equality – Scope of application – Employment – In private law.
– Fundamental Rights – Economic, social and cultural rights – Right to work.
– Fundamental Rights – Economic, social and cultural rights – Freedom to choose one’s profession.

Headnotes:
The subscription fee charged for new Bar Association members for registering within the Directory of Lawyers has no constitutional and statutory basis. According to the manner and the time in which it is charged (namely whilst registering in the Directory), this fee is considered an additional condition for practicing law, which is beyond what is stipulated by the Bar Law. The introduction of this fee charged only for new members of the Bar violates the principle of equality.

The non-publication of disputed decision, which introduced and determined the amount of the fee (four times the net salary earned in the business sector during the previous month) contradicts the constitutional principle of publication of laws and other regulations before their entry into force.

Summary:
Taking a petition lodged by an individual from Skopje being upheld by 96 citizens into consideration, the Court repealed Article 65 of the by-law of the National Bar Association and the decision on the amount of the subscription fee for new members of the Bar, delivered by the Bar’s Managing Board.

According to the disputed article, when registering in the Bar Directory, lawyers are obliged to pay a certain fee, which is determined by the Bar Managing Board. The amount cannot be lower than three times the average net salary paid in the preceding month. According to disputed decision, new lawyers must pay a fee of four times the net average salary as a subscription fee when registering in the Bar Directory. The decision itself entered into force when adopted, and should be published within the National Official Gazette.

In making its decision, the Court took into consideration constitutional provisions relating to the principle of equality of citizens before the Constitution and laws ([ENG-MKD-A-9] Article 9.2 of the Constitution), the right to work and the accessibility to each post under equal terms ( [ENG-MKD-A-32] Articles 32.2 and [ENG-MKD-A-5] 5 of the Constitution), as well as the principle of publication of laws and regulations before their entry into force ([ENG-MKD-A-52] Article 52.1 of the Constitution).[ENG-MKD-A-53] Article 53 of the Constitution, defining the position of the Bar, was also taken as ground for decision-making.

The Bar Law provides for legal assistance to individuals and entities in attaining and safeguarding their rights and legally-grounded interests in procedures before the courts, other bodies and institutions. It also provides for the organisation of the Bar, terms for registering in the Bar Directory and rights and duties of lawyers. The law also regulates that the Bar’s independence is fulfilled by the free and impartial exercise of its activity, by the free appointment of lawyers, by organising the relation of attorneys within the Bar Association, by autonomous adoption of internal acts of the National Bar Association, and by adoption of the Code on Legal Ethics etc. The right to practice as a lawyer is attained by registering in the Bar Directory. The Law stipulates the terms which a candidate must fulfil in order to be fit for registration in the Directory: to have Macedonian citizenship, to be a law graduate who has passed the bar exam, and to have the capacity to work as a lawyer.

The Bar Association, as an independent and impartial organisation, decides on the acquisition and cessation of the right to practice law, and on the registration and striking off the Bar Directory. It also adopts general acts of the Association.

The Court found the Bar to be an independent and impartial public service providing legal assistance and exercising public powers and duties, as determined by law. It found that the right to work as a lawyer is acquired by registering in the Bar Directory and that terms for its exercise are determined by law. It is accessible to everybody under equal terms. Besides, it is inevitable that lawyers are organised in the Bar Association, whose committees decide on the acquisition and termination of the right to practice law, and for registering in and striking off the Bar Directory, but under terms and procedures determined by the Law. However, the right to decide in each case does not encompass the right to establish new terms (not determined by statute) for matriculation in the Bar Directory, nor to introduce the payment of a subscription fee as an additional condition for being entitled to practice law.

Bearing in mind the above, the Court found the subscription fee imposed on new members of the National Bar Association to be unconstitutional and unlawful. It found it was an additional condition for being entitled to practice law, which went beyond what was established by statute. It also stated imposing of this fee only on new members of the Bar violates the principle of equality.

Since Article 2 of the decision in question provided for it entering into force immediately (before being published), the Court found it did not comply with [ENG-MKD-A-52] Article 52.1 of the Constitution.

MKD-2002-1-001
a) Republic of Macedonia / b) Constitutional Court / / c) 06.02.2002 / d) U.br. 210/2001 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 16/2002.

Keywords of the Systematic Thesaurus:

– General Principles – Rule of law.
– General Principles – Legality.
– General Principles – Nullum crimen, nulla poena sine lege.
– Fundamental Rights – Equality.
– Fundamental Rights – Civil and political rights – Right to dignity.
– Fundamental Rights – Civil and political rights – Procedural safeguards and fair trial – Presumption of innocence.

Headnotes:
The legal consequences of conviction regarding criminal matters consisting or loss of rights, other than those subject to the conviction cannot come into force automatically by virtue of law. They can only appear on the basis of a final irrevocable court decision. Any such loss of rights can appear only as a content of the convicting judgment. There is no possibility, if not strict provided for by the Constitution, for further punishments that restrict citizens’ rights.

Summary:
The Court annulled from Article 110.2 of the Criminal Code the words “come into force by virtue of the law that prescribes them”, because it ascertained that this was inconsistent with some constitutional provisions.

According to Article 110.1, the legal consequences of a conviction accompanying sentences for certain offences cannot arise when the perpetrator is fined, put on probation, when a court warning was issued or in cases when he or she is released from sentencing. According to paragraph 2, only law can establish legal consequences and they come into force by virtue of law.

The Court passed its decision taking into consideration the fundamental value of the constitutional order of the country, respectively the rule of law and the separation of powers. The Court also took into consideration the principle of equality of citizens in enjoying human rights and freedoms, the principle of constitutionality and legality, the presumption of innocence ([ENG-MKD-A-13] Article 13.1 of the Constitution) and the principle of nullum crimen nulla poena sine lege ([ENG-MKD-A-14] Article 14.1 of the Constitution). [ENG-MKD-A-54] Article 54.1 of the Constitution provides that human rights and freedoms can be restricted only in cases enshrined within the Constitution.

The Criminal Code itself does not treat the legal effects of a conviction as penalties nor as other types of criminal sanctions. It entails that the perpetrator of a criminal act cannot be deprived of certain rights or freedoms. Article 4 of the Criminal Code enumerates criminal sanctions: penalties, probation and judicial admonition, measures of insurance and educational measures. Article 33 defines custody and fines as types of penalties. Article 5 provides for the restriction or deprivation of certain rights or freedoms in enforcing the criminal sanction under certain terms: in a scope which is appropriate to the nature and contents of that sanction and in a way which respects the perpetrator’s personality and human dignity. Bearing in mind the contents of Article 110 of the Code, it means that the legal consequences of a conviction accompany sentences for certain offences. It means that although the legal consequences of a conviction are not treated as penalties, still, due to their nature, character and possibility to be set up by virtue of law, without forms and terms for their delivery being prescribed by the Criminal Code itself, they are given features close to those of a penalty. Therefore, they can greatly affect the length of the sentence.

Due to these reasons, the Court judged that the legal consequences of a conviction could not come into force by virtue of law automatically, but in pursuance to an irrevocable court decision. Further effects of enforcing the sentence, being shaped as a restriction or deprivation of certain rights are not allowed, if not explicitly stated in the Constitution. Since the provision in question stated that the legal consequences of a conviction come into force by virtue of law, and not as a penalty sentenced by the court within the range of sanctions, the Court ascertained the alleged unconstitutionality of the respective part of the disputed provision.

MKD-2001-3-012
a) Republic of Macedonia / b) Constitutional Court / / c) 31.10.2001 / d) U.br. 190/2001.

Keywords of the Systematic Thesaurus:

– Constitutional Justice – Jurisdiction – The subject of review.
– Sources of Constitutional Law – Techniques of review.
– General Principles – Rule of law.
– Institutions – Head of State – Powers – International relations.

Headnotes:
The 2001 Framework Agreement is a political act signed by leaders of the biggest political parties in the country, aimed to overcome the current national crisis. It is not a legal act which may be subject to judicial review according to [ENG-MKD-A-110] Article 110 of the Constitution enumerating the Court’s competencies.

Summary:
An individual lodged a petition with the Court challenging the constitutionality of the Framework Agreement signed on 13 August 2001. In the petitioner’s view, such an agreement should have been treated as a collective agreement signed by four political parties as legal entities, which expressed the collective will to come to such an agreement. Although this agreement referred to the public, all negotiations and talks related to its contents were enforced in camera. The applicant stated that the Agreement was conspiring against the Constitution, which was passed in a democratic way and proclaimed by the international community as democratic.

The Court determined that the Framework Agreement was concluded in Ohrid and signed in Skopje, with the English version being the only authentic one. It was signed by the President of the Republic, the leaders of four political parties and the special representatives of the European Union and of the United States. Constituent parts of the Agreement are annexes for constitutional and legislative amendments, implementation and measures for confidence building.

The introductory part of the Agreement provided for an adjusted framework for safeguarding the future of democracy in the country and the development of closer and more integrated relations with the Euro-Atlantic community. It is also stated that the Agreement was to promote peaceful and harmonised development of civil society, observing the ethnic identity and the interest of all Macedonian citizens thereby.

The Agreement consists of several items, such as: basic principles, termination of conflicts, development of decentralised government, non-discrimination and equitable representation, specific parliamentary procedures, education and use of languages, expression of identity, implementation, annexes and final provisions.

The Court ascertained that the parliament did not ratify the Framework Agreement.

In coming to its decision, the Court took into consideration constitutional and statutory provisions that regulate the legal position and procedure for incorporating international agreements into domestic legal system.

Thus, according to [ENG-MKD-A-118] Article 118 of the Constitution, the international agreements being ratified in accordance with the Constitution are part of the internal legal order and cannot be modified by virtue of law.[ENG-MKD-A-119] Article 119 of the Constitution sets forth that the President of the Republic concludes international agreements on the nation’s behalf. The government can also conclude international agreements when this is stated by law.

The Law on the Conclusion, Ratification and Enforcement of International Agreements regulates the procedure and way the international negotiations are governed, the conclusion of international agreements and accession to multilateral international agreements, the initiation of the ratification procedure, as well as the their execution. The law also provides for definition of an international agreement: “an international agreement is one signed by the Republic with one or more countries or international organisations, which determines the rights and obligations for the state, irrespective of whether it is stipulated in one or more mutually tied documents”.

With this in mind, the Court rejected the petition due to lack of procedural presumptions for decision making. It referred to an act which had none of the characteristics of a legal act eligible for judicial review in respect to the Court’s scope of references. In passing its decision, the Court judged all the evidence and facts related to legal nature of the Agreement. Thus, the Framework Agreement was run and signed under the auspices of State’s President. It was also signed by the leaders of four political parties. The representatives of the European Union and the United States signed the Agreement as witnesses. According to this legal situation, the Court judged that the Framework Agreement is a political act of leaders of the biggest political parties in the country aimed to overcome the crisis. Therefore, the Court stated that the Agreement is not a legal act eligible for judicial review. The Court passed the decision by virtue of its powers set out in [ENG-MKD-A-110] Article 110 of the Constitution.

MKD-2001-3-011
a) Republic of Macedonia / b) Constitutional Court / / c) 24.10.2001 / d) U.br. 177/2000.

Keywords of the Systematic Thesaurus:

– General Principles – General interest.
– Institutions – Executive bodies – Sectoral decentralisation.
– Institutions – Public finances – Budget.
– Fundamental Rights – Civil and political rights – Right to property.

Headnotes:
All revenues earned by the beneficiaries of the state budget are paid and displayed therein, provided that they decide upon the amount and purposes of covering so-called “self-financed activities” by virtue of their own financial forecast. Registration of these revenues in a special account and their display within the state budget does not infringe the right to ownership and rights deriving from this, nor does it distort the freedom of market and entrepreneurship. Since public revenues earned by public entities set up by the state are at issue, such a provision aims to ensure a higher level of responsibility and transparency in their earning and spending patterns, as this is in the public interest.

Summary:
The Drama Theatre and the Faculty of Law in Skopje seized the Constitutional Court on the constitutionality of Article 26 of the statute amending the Law on budgets.

The petitioners sustained that the provision at issue was not in conformity with several constitutional provisions that regulate the right to ownership and the freedom of market and entrepreneurship. They also referred to the Law on higher education as being violated by the provision in question.

Furthermore, the petitioners pointed out that private revenues are gained by providing services or activities that were not financed by the budget. Thus, such revenues could not have been treated as public ones. According to the Faculty of Law, such a statutory provision put into question the autonomy of the University being safeguarded by the Constitution. It also contradicted the principles of market economy and the treasury system in general. Such a treatment of revenues gained from so-called self-financed activities restricted public institutions’ rights to ownership, i.e. their right to manage and dispose of these revenues. It intruded upon the legal autonomy of the University, which should enjoy not only organisational and functional autonomy, but also financial autonomy. This referred primarily to the disposition of its own revenues.

According to the provision at issue, the revenues of self-financed activities gained by beneficiaries of the state budget by providing services not financed by the budget itself, are registered in a special account covering its own assets. All assets and liabilities of each state budget’s beneficiary are registered within the budget itself. Entities receiving their own revenues adopt a financial forecast, by which they ascertain the amount and investment purpose of such revenues.

The Constitution guarantees the right to ownership and the freedom of market and entrepreneurship and considers them as fundamental values of the constitutional order. Rights deriving from ownership can be restricted and abolished only in cases of the public interest as determined by law. Moreover, the state safeguards the equal legal position of all market entities ( [ENG-MKD-A-8] Articles 8.6.7, [ENG-MKD-A-30] 30 and [ENG-MKD-A-55] 55 of the Constitution).

According to [ENG-MKD-A-46] Article 46 of the Constitution, the University’s autonomy is guaranteed, provided that the law regulates the conditions for the establishment, performance and termination of its activities.

In pursuance to the Law on higher education, the autonomy of the University comprises academic freedom, managerial autonomy and irrevocability of this autonomy. The managerial autonomy is reflected inter alia by the fact that the University receives grant funding and is allowed to raise its own funds. Besides the revenues given by the Higher Educational Fund, state owned higher educational institutions can raise money under different grounds: by performing educational services, selling scientific and expert services, interests and dividends, copyright earnings etc. The Law also entitles them to the right to introduce shared financing of study costs under certain terms.

The Court also determined that the Law on Culture defines the same financial regime as regards national cultural interest. Besides the state budget, funds for enforcing the national interest in culture can be raised from other sources: fund-raising, foundations, gifts etc. Since funds for enforcing higher educational activities and funding for cultural activities come primarily from the state budget, these institutions should be considered as budget beneficiaries.

In light of the above, the Court judged that public institutions in the domain of social activities (education, culture, child protection, science and sport) are basically financed by the state budget and that all of these institutions are set up by the state, with its own capital. It also stated that higher educational institutions and those in the sphere of culture, are entitled to raise money from sources besides state budgetary funds and to run and use these independently, under terms stated by law.

The Court rejected the alleged unconstitutionality of the disputed provision. It found no detrimental effect over ownership rights on revenues obtained by beneficiaries of the state budget, nor over freedom of enterprise. It based its decision on the fact that through the financial plan, the entities decide independently about the amount and investment purpose of funds deriving from their self-financed activities. In addition to this, the Law on Budgets provides for a separate budget for each budget beneficiary, wherein its own assets and liabilities are registered. Therefore, the Court concluded that faculties and other public institutions are not restricted on decisions regarding these revenues. It jeopardises neither the faculty’s autonomy, nor their right to operate as market entities.

MKD-2001-3-010
a) Republic of Macedonia/ b) Constitutional Court / / c) 03.10.2001 / d) U.br.119/2001.

Keywords of the Systematic Thesaurus:

– General Principles – Social State.
– General Principles – Weighing of interests.
– Institutions – Armed forces, police forces and secret services – Armed forces.
– Fundamental Rights – General questions – Limits and restrictions.
– Fundamental Rights – Equality – Criteria of distinction – Gender.
– Fundamental Rights – Civil and political rights – National service.

Headnotes:
Although all persons are equal in their freedoms and rights, irrespective of their sex, as mothers, women enjoy special protection and rights.

In this sense, the existence of different legal regimes for military service for men and women (it is mandatory for former and voluntary for the latter) does not constitute a violation of human rights and freedoms nor does it create inequality among persons, according to their sex. Different regulation of terms for exercising military service for men and women confirms the interest and care the state provides for the special protection of women, which is its constitutional obligation.

Summary:
An association of citizens called “The World Macedonian Congress” lodged a petition with the Constitutional Court challenging the constitutionality of Articles 3.1 and 2 of the Law on Defence. In the petitioner’s view, the provisions at issue violated the principle of equality, discriminating persons according to their sex. This referred to national defence, enforcement of which the Constitution states as a right and obligation. Therefore, the petitioner claimed violation of [ENG-MKD-A-9] Articles 9, [ENG-MKD-A-28] 28, [ENG-MKD-A-51] 51 and [ENG-MKD-A-54] 54 of the Constitution.

Pursuant to the disputed provisions, all male citizens between 17 and 55 years of age are obliged to do military service. Women can serve in the military if they voluntarily register as military recruits at any time until the end of calendar year when they are 27.

In coming to its decision, the Court took into consideration those constitutional provisions that refer to citizens’ equality, defence of the state and the special protection and care of mothers and children.

According to [ENG-MKD-A-9] Article 9 of the Constitution, all persons are equal in their freedoms and rights, regardless of sex, race, colour of skin, national and social origin, political and religious beliefs, property and social status. All are equal before the Constitution and laws.

According to [ENG-MKD-A-28] Article 28 of the Constitution, the defence of the Republic is a right and obligation of each citizen. The Law determines the attainment of this right and obligation. In pursuance to [ENG-MKD-A-122] Article 122 of the Constitution, military forces of the Republic protect the territorial integrity and the country’s independence.[ENG-MKD-A-42] Article 42 of the Constitution provides for country’s duty to exercise special protection of mothers and children. Children and mothers are entitled to special social security benefits.

The Constitution defines national defence not only as a right, but also as an obligation of each citizen, men and women, but the attainment of this right and obligation is within the scope of regulation.

The Law on Defence determines this right and obligation as a system of protection of the country’s independence and its territorial integrity, and defines the citizens, state bodies and military forces as defence subjects. Trade companies, public undertakings, institutions and offices and local self-government units can perform certain duties in the domain of defence.

The Law enumerates individual rights and obligations of citizens while enforcing national defence obligations. It also states the special terms, the manner and the time when each of these rights and obligations are exercised.

In the Court’s opinion, the meaning and objective of the disputed provisions should be assessed in relation to all human rights and freedoms enshrined in the Constitution, being recognised and accepted by international law, which finally determine their status and position in the society in general, including the system of defence.

Therefore, the Court found that the different legal regimes for military service for men and women represent, in the widest sense, a confirmation of the state’s interest and care for women, due to the fact that they may become mothers. Since the Constitution defines this special protection of women as a state obligation, the legislature is vested to define the forms, ways and terms for its enforcement. In addition to this special protection, the Law on defence consists of other provisions, which are in favour of women. For example, according to Articles 11 and 12, pregnant women and mothers who take care of children under 8 years are exempted from their obligations as regards the need to work.

MKD-2001-3-009
a) Republic of Macedonia / b) Constitutional Court / / c) 19.09.2001 / d) U.br.15/2001 // e) Sluzben vesnik na Republika Makedonija (Official Gazette), 79/2001.

Keywords of the Systematic Thesaurus:

– Fundamental Rights – Equality – Criteria of distinction – Age.
– Fundamental Rights – Civil and political rights – Right to family life – Descent.

Headnotes:
The legal meaning of family relations involves a specific legal category where rights and obligations between family members dominate.

The provision limiting the right of an illegitimate child to determine the identity of his or her father to the age of 21, whereas the parents have an unrestricted right during their life to lodge an appeal regarding their paternity or maternity, contradicts the constitutional principle of equality.

Summary:
The Court ascertained the alleged unconstitutionality of Article 60.1 of the Families Act, according to which an illegitimate child can lodge an appeal to determine the identity of his or her father up to the age of 21. In the petitioner’s view, such a provision restricted the child’s right to take proceedings relating to paternity, whereas the person claiming to be the father had an unrestricted right to take such proceedings irrespective of the child’s age. The petitioner stated that such a provision was not in compliance with the constitutional principle of equality.

Bearing in mind the overall contents of the Families Act, the Court found that parents enjoy an unrestricted right to lodge an appeal relating to their paternity or maternity, regardless of the child’s age.

In constructing its opinion, the Court took into consideration the relations regulated by the Family Act in its entirety, especially relations between parents and children based on the following family law principles: the principle of equality, the principle of protecting children’s interests and protecting the family. The Court concluded that the legal meaning of family relations involved a specific legal category where rights and obligations between family members dominate. These elements appear as: rights and duties of a non-proprietary nature (loyalty, assistance, respect), those of a proprietary nature (right of mutual maintenance between spouses, as well as between parents and children) and other rights and obligations existing between spouses and between parents and children.

The Court found that the law defines age limits for commencing or terminating the procedure for attaining certain rights. However, they should not represent an obstacle in attaining these rights. Therefore, as regards this particular case, the Court judged the provision at issue as unconstitutional. It based its opinion on the fact that the law entrusted parents with an unrestricted right to lodge an appeal regarding their paternity or maternity regardless of the child’s age, whereas the child had no such unrestricted right. The Court found such differentiation as contrary to the principle of equality enshrined in [ENG-MKD-A-9] Article 9 of the Constitution.

MKD-2001-3-008
a) Republic of Macedonia / b) Constitutional Court / / c) 12.09.2001 / d) U.br. 10/2001 / /e) Sluzben vesnik na Republika Makedonija (Official Gazette), 78/2001.

Keywords of the Systematic Thesaurus:

– General Principles – Social State.
– General Principles – Rule of law.
– General Principles – Certainty of the law.
– Institutions – Executive bodies – The civil service.
– Fundamental Rights – Equality – Scope of application – Employment – In private law.
– Fundamental Rights – Equality – Scope of application – Employment – In public law.
– Fundamental Rights – Equality – Scope of application – Social security.
– Fundamental Rights – Economic, social and cultural rights – Right to work.

Headnotes:
The right to work is one of the fundamental human rights guaranteed by the Constitution, which cannot be specified or altered according to specific circumstances. Since the Constitution does not make any distinction between employees in the economic and non-economic sectors, the legislature is obliged to put individuals in an equal legal position with respect to rights, duties and responsibilities deriving from labour relations, the creation and termination of employment, social security and retirement.

The state is obliged to respect the constitutional obligation to treat the beneficiaries of these rights equally and to create such conditions where equal rights would refer to all persons being in same position.

Redundancies for public sector employees only, the lack of objective criteria and terms for its enforcement, as well as difference in the quality of rights of this category of employees violates the constitutional principles of equality, the rule of law and legal certainty.

Summary:
Judging upon a petition lodged by several individuals and legal entities, the Court repealed the statute amending the Law on labour relations. Under the disputed Law, the attainment of rights, duties and responsibilities of an employee and employer and the creation and termination of employment can be regulated by other laws besides the Law on labour relations.

The core issue of the petition was the introduction of a new method of redundancy, which was reserved for one category of employees only – those in the public sector.

The Law at issue introduced “redundancy due to office requirements” as a specific way of employment termination. It also provided for more accurate regulation of issues related to employment termination in this way.

The employment terminates by dismissal due to office requirements if:

1. state and local self-government units and bodies of the city of Skopje, public undertakings and institutions, funds and other organisations and institutions set up and owned by the state or set up by virtue of law would cease working or would be dissolved;

2. these institutions are undergoing internal reorganisation;

3. there is a loss of competencies or the scope of work has narrowed; and

4. there have been other organisational changes that bring about redundancy.

The Law has also defined the rights to which the newly redundant employee is entitled to:

1. the right to a retirement pension, if certain criteria are met; and

2. the payment of redundancy money under certain circumstances.

While judging the constitutionality of the disputed Law, the Court took into consideration the fundamental values of the constitutional order and provisions, which refer to individuals’ equality, the right to work and the rights and positions of employees. It also examined the values inherent in social security and social insurance legislation.[ENG-MKD-A-8] Article 8 of the Constitution specifies the fundamental values of the constitutional order. Amongst these are: human rights and freedoms acknowledged in international law and established by the Constitution, the rule of law, humanism, social justice and solidarity.[ENG-MKD-A-9] Article 9 of the Constitution safeguards the equality of persons in respect to their rights and freedoms, as well as before the Constitution and laws.[ENG-MKD-A-32] Article 32 of the Constitution inter alia sets out that each person is entitled to work and material safety in time of temporary unemployment, provided that employees’ rights are attained and their position is regulated by law and collective agreements.

Labour relations are determined by a contract established between the employee and employer stipulating some things to be done and rights and duties deriving there from to be enforced. The employee sets up the employment on voluntarily basis, under a method and terms stated by law and collective agreement. The Law on labour relations and collective agreements regulate the terms and processes of employment termination, including the forms and ways of employees’ rights to protection in such cases. The Law prescribes several ways of employment termination: upon agreement, after the expiration of the period of employment, by virtue of law, or by dismissal due to economic, technological, structural or similar changes.

The Law, which was subject matter of Court examination in this case introduced an additional way of employment termination referring to public sector employees only: dismissal due to office requirements. Besides, it set out specific rights, different from those to which employees are entitled to in case of employment termination described above.

In the Court’s opinion, the Constitution proclaims the right to work and material safety in case of temporary unemployment, provided that employees’ rights are regulated by law and collective agreements. Social protection and social security of persons, which are defined as common constitutional principles, are based on state social character, provided that the legislature regulates the rights and their scope. That means that the Constitution does not determine the attainment and scope of labour and social insurance rights, but it forces the legislature to regulate it. However, laws dealing with labour and social insurance issues must determine such principles, which would equally refer to all, i.e. employees or the unemployed.

After analysing the Law at issue, the Constitutional Court concluded that its provisions prescribed a specific way of employment termination in cases where the state was in the position of employer. Although it authorised the state to decide on possible rights to which the employee dismissed was entitled, it was obliged to ensure an effective protective mechanism regarding employees’ legal safety.

In coming to its decision, the Court looked at several issues. As regards rights, duties and responsibilities deriving from employment, including its creation and termination, the legislature is bound to safeguard the equal legal position of persons.

Labour relations are a unique category of contractual relations between the employee and employer referring to all employees equally, regardless of their activities or sphere of work. The right to work is a universal one, and does not depend on the sector in which it is enforced. The Court judged that the principle of equality is also jeopardised as regards the quality of rights relating to employees, who have been made redundant due to office requirements. In the Court’s opinion, the law at issue put the employees in the public sector in an advantageous position.

Since the Law in question did not establish terms and criteria to which the employer would be bound when dismissing employees due to office’s requirements, the Court found that employees’ legal safety was jeopardised as well. On the other hand, it also restricted the possibility for protection of employees, whose employment had ceased on these grounds. The lack of objective criteria, whereby the termination of employment would depend on an employer’s will, was held by the Court to breach the fundamental principle of the rule of law. Due to the reasons stated, the Court ascertained the alleged unconstitutionality of the Law amending the Law on labour relations.

MKD-2001-2-007
a) Republic of Macedonia / b) Constitutional Court / / c) 18.07.2001 / d) U.br.20/2001, U.br.69/2001 / / g) Sluzben vesnik na Republika Makedonija (Official Gazette), 58/ 2001.

Keywords of the Systematic Thesaurus:

– General Principles – Rule of law.
– General Principles – Certainty of the law.
– General Principles – Publication of laws.
– General Principles – Reasonableness.
– Institutions – Executive bodies – Powers.
– Institutions – Federalism, regionalism and local self-government – Basic principles – Autonomy.
– Fundamental Rights – Equality – Scope of application – Employment – In public law.
– Fundamental Rights – Economic, social and cultural rights – Right to work.

Headnotes:
The attainment of employees’ rights and their status are regulated by statute and collective agreements. The government is not entitled to pass a decision by which it regulates the establishment of employment in the public sector (state budget beneficiaries, public undertakings and institutions, and local self-government units) in a way that contradicts the provisions set out in the relevant statutes.

Employers decide on the need for new workers and on selection among applicants independently, whereby the Institute for Employment is obliged to register each labour contract. It is not authorised to judge whether and when to register such contracts.

Summary:
The Court repealed the government decision on the temporary cessation of employment in bodies benefiting from state budget funds, in local self-government units, and in public institutions and public undertakings. The decision at issue referred to a limited period of time: from the adoption of the decision up to the introduction and implementation of a treasury system.

According to disputed decision, only in the case of urgent necessity, can the above mentioned entities employ persons by virtue of prior written approval by the Office of the President of the Government of Macedonia and with a prior positive opinion, issued by the Ministry of finance clearing the finances. Applications for new employment or for replacement should be lodged with the Office of the Prime Minister directly. The decision also obliged the Institute of Employment not to register new employees without the prior written approval from the government. The decision entered into force after being adopted.

In Court’s opinion, the decision was not in conformity with the principle of the rule of law and citizens’ equality, nor with the principle of publicity, i.e. the promulgation of regulations before they enter into force, nor the constitutional right of each citizen to work, including openness, fairness and equality of employment. The Court found that decision intruded upon the work, independence and autonomy of local self-government and constituted an additional competence of inspection for the Institute of Employment, which was ultra vires its powers.

According to [ENG-MKD-A-68] Article 68.1.2 of the Constitution, the Assembly adopts statutes, which implies that only the legislature regulates issues in the realm of employment, including its establishment.

The government is responsible for law enforcement. In this respect it adopts decrees, decisions, instructions, programs, rulings and conclusions, but it is not entitled to settle issues related to employees’ rights and their position. Since the act at issue referred to a strictly defined category of people from the public sector, the Court judged that it contradicted the constitutional guarantee according to which citizens must be treated equally and not discriminated against. In the Court’s opinion, the decision created legal uncertainty and violated the principle of the rule of law, because it permitted the application of subjective will out of the statute-determined objective criteria for employment. This manifests itself through the preliminary approval given by the Office of the Prime Minister and the positive opinion by the Ministry of Finance.

According to [ENG-MKD-A-114] Article 114.5 of the Constitution, local self-government is regulated by statute. Article 4.2 of the Law on local self-government states that local self-government units cannot be restricted by acts of the central government while performing their duties, except in cases and under terms stated by law and in accordance with the Constitution. Since no law authorises the government to pass a decision by which it interferes in the activities of local self-government units and restricts their jurisdiction, the Court found this decision incompatible with the law as well.

Since the position of employees in public undertakings should be equal to that of employees in private companies (in pursuance to Article 37 of the Law on public undertakings), the Court stated that the government is not entitled to regulate, i.e. to restrict, the legal status of employees in public undertakings.

According to the Law on Labour Relations and Law on Labour Inspection, the state administrative body competent to carry out employment inspections supervises the application of laws and other regulations in the domain of employment. As regards statutory provisions, the Institute of Employment has no inspection jurisdiction. As an intermediary in the employment field, it is only authorised and obliged to record each conclusion and termination of employment. Therefore, the Court found that the act in question constituted an additional inspection jurisdiction for the Institute insofar as it entitled it to estimate whether and when to attest the labour contract. In the Court’s opinion, it restricted the constitutional right to work and employer’s right to decide independently on the need for new employment and for recruitment of new employees.

The Court found the disputed regulation incompliant with [ENG-MKD-A-52] Article 52 of the Constitution, according to which laws and other regulations are published before they enter into force.

Since Article 4 of the decision stipulated that it enters into force on the day of its adoption, the Court found that it violated the constitutional principle of publication of regulations before they enter into force.

Therefore, the Court found that decision at issue was not in conformity with [ENG-MKD-A-52] Article 52 of the Constitution, nor with the Law on Civil Servants, the Law on Public Undertakings, the Law on Employment and Unemployment Insurance, the Law on Labour Relations, the Law on Labour Inspection, the Law on the Government of Macedonia nor, finally, with the Law on Local Self-Government.

MKD-2001-2-006
a) Republic of Macedonia/ b) Constitutional Court / / c) 06.06.2001 / d) U.br.141a/2000, U.br.141b/2000, U.br.141v/2000.

Keywords of the Systematic Thesaurus:

– General Principles – Legality.
– General Principles – Proportionality.
– General Principles – General interest.
– Institutions – Executive bodies – Application of laws – Delegated rule-making powers.
– Fundamental Rights – Equality.
– Fundamental Rights – Economic, social and cultural rights – Commercial and industrial freedom.

Headnotes:
The terms and procedures for rendering telecommunication services, which is an activity in the public interest, are regulated by statute. The ban on other legal entities and individuals exercising such activities up until a certain period of time (31 December 2005) represents a statutory way of meeting the public interest. By charging commercial radio stations a fee for the transmission and broadcast of programmes, whilst at the same time exempting public networks from this duty, the legislature does not breach the constitutional framework. The principle of equality of radio broadcasting organisations refers to access for the use of the state radio broadcasting network, but this principle does not apply to other radio and television networks.

Summary:
A lawyer from Stip lodged a petition with the Court challenging the constitutionality of several legal provisions referring to telecommunication services and radio and television networks: Article 22.4 and Article 33.2 of the Law on Telecommunications, Article 7 and 13 of the Law on the Establishment of the Public Undertaking, “Macedonian Radio Broadcasting”, and Article 11 of the Law on the Establishment of the Public Undertaking, “Macedonian Radio Television”.

According to Article 22.4 of the Law on Telecommunications, up until 31 December 2005, no legal entity or individual besides the current public telecommunication operator may:

1. provide, organise, advertise, promote or otherwise participate in organising call back services, or

2. provide fixed telephone call services, telegraph services, telex and other services involving line rental, nor construct, own or work with established public telecommunication networks.

In the petitioner’s view, this provision was in contradiction to [ENG-MKD-A-55] Article 55 of the Constitution, which safeguards the principle of market freedom and entrepreneurship.

In rejecting the alleged unconstitutionality of the provision at issue, the Court took into consideration the nature of the telecommunication services and the statutory provisions that regulate the way they are exercised, as a public utility service.

Article 1.2 of the Law on Public Undertakings provides for the meaning of commercial activities of the public interest: these are those “which are essential for the life and work of citizens, and for the work of legal entities and state bodies”. Amongst others, Article 2 of this law describes telecommunications, as well as the system of radio and television networks, as a public utility service. Pursuant to this law, the terms under which these services are exercised and the way in which the element of “public interest” is attained should be regulated by statute. As a lex specialis, the Law on telecommunications regulates exactly the terms under which telecommunication services are exercised, as well as the attainment of the public interest element in this sphere. In the Court’s opinion, the provision that bans other legal entities and individuals from exercising the services mentioned above up until 31 December 2005, does not put the current telecommunication operator in a monopolistic position. It just specifies the way in which the public interest element is attained in this sector.

According to Article 33.2, the Minister for Transport and Communications, upon the prior proposal of the Directorate, passes the regulations for the allocation of operating licences for radio stations.

The petitioner claimed that radio operating licences are goods of public interest. Therefore, he alleged the provision at issue contradicted [ENG-MKD-A-56] Article 56 of the Constitution, according to which a law, and not a ministerial regulation, should define the method and the terms under which certain goods or rights in the public interest sphere can be given out for use.

The Court found that the disputed provision did not violate the constitutional arrangement of use of goods pertaining to the public interest. It judged that the provision only aimed to enforce the law itself, and that it was the law which originally set up the methods for issuing radio operating licences – Article 27.1.5 of the Law on the Organisation and Work of State Administrative Bodies states that the Ministry of Transport and Communications covers the issues related to telecommunications and telecommunication infrastructure.

The next provision, which the petitioner claimed as unconstitutional, was Article 7 of the Law on the Establishment of the Public Undertaking, “Macedonian Radio Broadcasting”. This law stipulates that the public undertaking is to transmit and broadcast radio and television programmes of Macedonian Radio Television (MRT), covering the whole territory of the state via two radio and television networks free of charge. The public undertaking (Macedonian Radio Broadcasting) also transmits and broadcasts programmes free of charge for public radio broadcasting undertakings, which perform public interest activities on a local level and which re-broadcast programmes delivered by MRT. Paragraph 3 of this article prescribes that public undertakings should charge a fee to commercial radio broadcasting companies (those which obtained concessions for performing radio broadcasting activity) for the transmission of programmes.

The petitioner raised the question of the unconstitutionality of this provision because in his opinion it put MRT in a privileged position in the market with respect to other, commercial radio stations, which violated [ENG-MKD-A-55] Article 55 of the Constitution.

The Court also described radio and television networking as public interest activities and referred to statutory provisions, according to which the methods for the exercise of these activities, as well as the attainment of the public interest element, should be determined by statute. Therefore, the Court ascertained that the legislature did not infringe the constitutional framework by prescribing the fees to be paid by commercial broadcasting companies to the public undertaking for the transmission of programmes.

Article 13 of the Law on the Establishment of the Public Undertaking “Macedonian Radio Broadcasting” was challenged because in the petitioner’s view it empowered the government to appoint and dismiss members of the Board for the Supervision of Finances, whereas this competence should have been exercised by the National Assembly.

The Court rejected the alleged unconstitutionality of this provision as well. The reason for its decision was that it held that the Law on Public Undertakings stipulates that on behalf of the state, the government establishes public undertakings. Since the law at issue is a lex specialis in respect to public undertakings in the sphere of radio broadcasting, the Court judged that there are no constitutional infringements in the law entrusting the government, as founder of the public undertaking, with the right to appoint and dismiss the members of the body which supervises its financial operations.

The Court did not commence the procedure for judging the constitutionality of Article 11 of the Law on the Establishment of the Public Undertaking “Macedonian Radio Television”. In the petitioner’s view, this provision infringed [ENG-MKD-A-55] Article 55 of the Constitution, because it enabled MRT to use the aforementioned network of the public undertaking to broadcast radio and television programmes free of charge. Therefore, it put this entity in a privileged position in the market with respect to other radio broadcasting companies.

According to Article 8.13 of the Law on Radio Broadcasting, this activity is based on the principle of equality of companies in their access to the basic state radio broadcasting network for the transmission, broadcast and distribution of radio and television programmes. The Court found that the disputed provision referred to the right of MRT to transmit and broadcast radio and television programmes free of charge via three UVF radio and television networks. Therefore, it stated that the aforementioned principle refers only to access to the basic radio broadcasting network and not to any other radio or television network, which is excluded from the basic one.

MKD-2001-2-005
a) Republic of Macedonia / b) Constitutional Court / / c) 23.05.2001 / d) U.br.196/2000.

Keywords of the Systematic Thesaurus:

– General Principles – General interest.
– General Principles – Market economy.
– Institutions – Judicial bodies – Legal assistance and representation of parties – The Bar.
– Institutions – Public finances – Taxation – Principles.
– Fundamental Rights – Equality.
– Fundamental Rights – Economic, social and cultural rights – Commercial and industrial freedom.

Headnotes:
Having a free market, entrepreneurship and legal equality of all market entities does not restrict the legislature from determining distinct tax bases for the sale of goods and provision of services exercised by different market entities. The legal bar, as a public service, whose status and organisation are regulated by the law, performs activities that differ from those exercised by other subjects in the marketplace. Therefore, the charging of different VAT rates to attorneys and other entities providing legal assistance under certain circumstances does not violate the principle of the free market and entrepreneurship and the legal equality of market entities.

Summary:
An individual from Skopje lodged a petition with the Court, challenging the constitutionality of Article 30.2.3 of the Law on value-added tax and Article 6.2 of the Decision regulating goods and services charged at a lower VAT rate.

In the petitioner’s opinion, the provisions at issue infringed [ENG-MKD-A-55] Article 55.2 of the Constitution, because they created inequality among attorneys and other individuals, associations and companies entitled to provide legal assistance in certain areas and under certain circumstances. This is due to the lower VAT rate of 5% charged for services rendered by attorneys, compared to those of other entities, charged at the general tax rate of 19%.

In making its decision, the Court took into consideration the legal position and status of the legal bar and [ENG-MKD-A-55] Article 55 of the Constitution, which regulates the matter of competition and the equal legal position of entities in the market.[ENG-MKD-A-55] Article 55 of the Constitution provides for free market and entrepreneurship. It also binds the state to safeguard the equal legal position of all market entities. It forces it to undertake measures against monopolistic behaviour and abuse of dominant positions on the market.[ENG-MKD-A-53] Article 53 of the Constitution defines the status of the bar. It is an autonomous and independent public service that provides legal assistance and carries out public mandates, in accordance with the law.

The Law on value-added tax defines it as one of general consumption being calculated and charged in each stage of the production and marketing of all goods and services, unless otherwise stated. Any sale of goods or provision of services for remuneration is liable to become the subject of taxation. A taxable person is one who independently performs a commercial activity on a permanent or temporary basis. The law also states the meaning of commercial activity: it is any activity undertaken by manufacturers, tradesmen and service providers, with the aim of gaining income.

The principles of market freedom, entrepreneurship and legal equality of all entities in the marketplace do not restrict the legislature from determining a distinct tax basis for the sale of goods and provision of services exercised by different market entities. This is due to the fact that the role of state, in safeguarding the legal equality of market entities and taking measures against monopolistic behaviour in the market, presupposes an equal position and status of the entities concerned. In this case, contrary to other entities providing legal assistance, the bar has an important and significant role within the system of constitutional guarantees in the protection of human rights and freedoms. It is defined as an autonomous and independent public service providing for legal assistance and carrying out other public mandates. Its organisation and working practices are regulated by a specific law. Moreover, certain rights and responsibilities provided for in distinct laws, such as the Law on Criminal Procedure and other procedural laws, are reserved solely for attorneys. That implies that the bar cannot be treated equally with other entities providing legal assistance in certain domains, since their legal status and position are different.

Therefore, the Court found that the statutory provision prescribing a lower tax rate for attorneys’ services (5%) does not infringe the constitutional principles of market freedom and entrepreneurship, because different tax rates charged to distinct entities result from their different legal positions and status the different duties they perform.

Consequently, the Court rejected the alleged unconstitutionality of the disputed provisions.

MKD-2001-1-004
a) Republic of Macedonia / b) Constitutional Court / / c) 21.03.2001 / d) U.br.168/2000; U.br.169/2000 / / g) Sluzben vesnik na Republika Makedonija (Official Gazette), 27/2001.

Keywords of the Systematic Thesaurus:

– General Principles – Sovereignty.
– General Principles – General interest.
– Fundamental Rights – General questions – Limits and restrictions.
– Fundamental Rights – Civil and political rights – Freedom of association.
– Fundamental Rights – Collective rights – Right to self-determination.

Headnotes:
Citizens are free to establish associations of citizens and political parties and to join and leave them. The programme and activities of associations may not be directed towards violent destruction of the constitutional order of the Republic or at the encouragement or incitement of national or racial hatred or intolerance.

Summary:
Three attorneys from Skopje lodged a petition with the Court challenging the constitutionality of the Programme and Statutes of Radko, an association of citizens seated in Ohrid (“the association”).

The petitioners grounded their allegations of unconstitutionality of the acts at stake on several points: the programme of the association was directed towards the violent destruction of the constitutional order; they blocked the free expression of the national affiliation of the Macedonian people, i.e. they denied its self-existence; and they incited ethnic hatred or intolerance.

When reviewing the constitutionality of the disputed acts, the Court took into consideration not only the association’s objectives that have directly and explicitly called for the violent destruction of the constitutional order and incited ethnic hatred or intolerance, but also those activities which objectively led towards what the Constitution does not allow.

The association’s literature stated that the association is named after the nickname of Ivan Mihajlov-Radko, under whose leadership the Macedonian liberation movement had grown up. The association glorified the work of Ivan Mihajlov-Radko, as the moral and intellectual pillar of the revolutionary and cultural struggle of Bulgarians from Macedonia. His heritage provided future heirs with evidence of the cultural and revolutionary struggle of Bulgarians from Macedonia, they claimed.

Thus, the following were indicated as the association’s objectives:

– the affirmation of the cultural and historical identity of the Slavs from Macedonia, that were known as Bulgarians throughout centuries;

– the restoration of traditional ethics and human values; and

– the affirmation of the Macedonian liberation movement.

The acts in question have also indicated the ways in which these objectives could have been enforced, which were basically cultural forms of activity: the publication of books, a newspaper and electronic media, the organisation of seminars, conferences and workshops etc.

The Court considered constitutional provisions related to the freedom of association. According to [ENG-MKD-A-20] Article 20 of the Constitution, citizens are guaranteed freedom of association in order to exercise and safeguard their political, economic, social, cultural and other rights and convictions. The establishment of, as well as the freedom to join or resign from associations of citizens and political parties is free. Nevertheless, [ENG-MKD-A-20] Article 20.3 of the Constitution comprises imperative provisions according to which the programmes and activities of associations of citizens may not be directed towards the violent destruction of the constitutional order or at the encouragement or incitement of ethnic or racial hatred or intolerance.

In the Court’s opinion, citizens’ freedom and the right to assemble act is a fundamental value for the existence and development of democratic relations in exercising power, which has the citizens, their freedoms and interests at its core. However the stated objectives of the Association enshrined in its programme and statute have the effect of limiting their freedom of association.

In this respect, the Court has the effect of taken into consideration the Preamble of the Constitution, provided that each activity denying the self-determination of the Macedonian people is in fact directed towards violent destruction of the constitutional order, or at the encouragement or incitement of ethnic or racial hatred or intolerance and towards negating free expression of national affiliation.

The association was declared to be unconstitutional by the Court.

MKD-2001-1-003
a) Republic of Macedonia / b) Constitutional Court / / c) 14.03.2001 / d) U.br.175/2000.

Keywords of the Systematic Thesaurus:

– Sources of Constitutional Law – Categories – Written rules – International instruments – European Convention on Human Rights of 1950.
– General Principles – Relations between the State and bodies of a religious or ideological nature.
– General Principles – General interest.
– Fundamental Rights – General questions – Entitlement to rights – Legal persons.
– Fundamental Rights – Equality.
– Fundamental Rights – Civil and political rights – Right to property – Privatisation.

Headnotes:
Churches, monasteries and estates are rightful claimants of the right to denationalisation, which derives from the specific character and nature of their activities and objectives. They are a social need and a historical reality, throughout which the protection of interests of members affiliated therein is safeguarded. Although the principle of equality prohibits arbitrariness in law enforcement, “exemptions” are allowed if the protection of public interest so requires.

Summary:
The Court did not sustain the alleged unconstitutionality of an article from the law amending the Law on denationalisation according to which “a property is returned, i.e. compensation is given to individuals and religious temples, monasteries and estates for property seized as from as 2 August 1944”.

In the petitioner’s view, the entities enumerated were not legal entities. The provision at issue defined an estate in property as a legitimate holder of the right to denationalisation, which was contrary to the principle of legal protection of ownership, stated in [ENG-MKD-A-8] Articles 8.6 and [ENG-MKD-A-30] 30 of the Constitution and [ENG-ECH-1-1] Article 1 Protocol 1 ECHR.

According to the petitioner, the law in question has stated that only individuals are possible holders of the right to denationalisation and has exempted legal entities. If religious institutions could be treated as legal entities, the provision violated the principle of equality enshrined in [ENG-MKD-A-9] Article 9 of the Constitution. Besides, the petitioner ascertained that the Serbian Orthodox Church owned the property in issue when it was seized. Since the law did not explicitly define the Macedonian Orthodox Church as the legitimate successor, it could not be taken as the holder of the right to denationalisation.

According to [ENG-MKD-A-8] Article 8.6 of the Constitution, the legal protection of ownership is amongst the fundamental values of the constitutional order of the state.

By virtue of [ENG-MKD-A-30] Article 30 of the Constitution, the right to ownership and inheritance is a fundamental economic human right guaranteed by the Constitution. Although it does not enumerate possible holders of this right, it can be concluded that such a right enjoys each legally verified entity.[ENG-ECH-1-1] Article 1 Protocol 1 ECHR safeguards the protection of ownership, guaranteeing each individual and legal entity the right to peaceful enjoyment of the property. No one can be deprived from their property, except in cases of public interest and under terms in accordance with law and general principles of the international law.

In the Court’s opinion, the term “individual and legal entity” refers to the national law of countries to determine the scope of entities eligible to enjoy their property peacefully, in each concrete case.

According to [ENG-MKD-A-19] Article 19.3 of the Constitution, the Macedonian Orthodox Church and other religious groups are separate from the state and are equal before the law. The separation of religious institutions from the state aims to ensure that the state would not interfere and intervene in church and religious matters, and that the church and religion would not be involved and engaged in political life or exercise state functions. Therefore, it is inevitable that these entities are constitutionally verified and confirmed and are legally bound to perform their duties in accordance with the Constitution, laws and other regulations.

The denationalisation, taken as a process of the restitution of property or compensation for assets seized in the state’s favour, protects the rights of former owners, directly or indirectly. The Court found that the disputed provision gives legitimacy to religious institutions (religious temples, monasteries and estates) to call for the right of denationalisation in order to enable these communities to enforce their specific objectives. Referring to the legal continuity of these entities from the time of seizure of the property until its restitution, the Court stated that this is a matter which should be ascertained in the denationalisation procedure itself.

Bearing in mind the whole content of the law, it could be taken that individuals are central to the process of denationalisation. Beyond that, only churches, monasteries and estates are determined as legitimate holders of the denationalisation right. The exclusivity that law gives to these entities (including the Holocaust Fund for Jewish people from Macedonia) derives from the specific nature of activities exercised by these entities, their objectives and significance. The Court found no grounds to sustain the alleged incompatibility of the provision with the principle of equality.

MKD-2001-1-002
a) Republic of Macedonia / b) Constitutional Court / / c) 28.02.2001 / d) U.br.45/2000; U.br.61/2000 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 23/2001.

Keywords of the Systematic Thesaurus:

– General Principles – Rule of law.
– General Principles – Weighing of interests.
– General Principles – General interest.
– Institutions – Legislative bodies – Political parties – Financing.
– Fundamental Rights – Equality.
– Fundamental Rights – Civil and political rights – Freedom of association.
– Fundamental Rights – Economic, social and cultural rights – Commercial and industrial freedom.

Headnotes:
An imprecise statutory provision provides wide margins for different interpretations and applications in practice which can hinder the rule of law. Political parties are civil, not trade associations. They attain objectives of global, not partial, social interest. Political parties cannot raise funds from trade activities, which are beyond political exercise, because it would violate the freedom of market and entrepreneurship and would jeopardise the equal legal position of all market entities.

Summary:
The Democratic Alliance from Skopje lodged a petition with the Court challenging the constitutionality of Article 28.1 of the Law on Political Parties.

The provision at issue ascertained the financial resources that political parties can make use of while exercising their activities. According to this article, political parties can raise funds from membership fees, contributions, revenues from their own assets, credits, donations, grants and from the state budget. What was challenged and nullified by the Court referred to the revenue parties could earn from their own assets.

In its reasoning, the Court primarily considered the legal position and objectives of political parties. Thus, Article 2 of the law defines political parties as organised groups of citizens pledging to participate in the government. Article 3 therefore determines the objectives of political parties: to enforce and safeguard the political, economic, social, cultural and other rights and beliefs of their members; to take part in making political decisions; to be involved in the process of election of representatives in the National Assembly and in municipalities’ assemblies and of the city of Skopje. [ENG-MKD-A-20] Article 20 of the Constitution safeguards freedom of association. Citizens can exercise this right to safeguard their political, economic, social, cultural and other rights and convictions.

This definition of the position and objectives of political parties was the starting point for the Court to determine its findings. Political parties are civil associations. The performance of their tasks is not of direct material interest for a limited group of citizens (the members of that party). They accomplish objectives of global and general interest for society that are of a political, economic, social, cultural and civil nature. Thus, political parties are a counterbalance in society to other groups of citizens and individuals whose interests are material and partial, and can be accomplished individually or in association. In the Court’s opinion, this enables the existence of different value structures in society, the mutual interaction of which ensure its development and democratisation.

The Court partially rejected the provision in question, allowing parties to raise funds from revenues from their own assets, for several reasons. First, because of its imprecise content, which can induce different interpretations and application in practice. This imperils the principle of the rule of law, a fundamental concept of the constitutional order. Second, it jeopardises the constitutional concept of the functions and objectives of political parties. Third, such activity employed by political parties can violate one of the economic bases of the country enshrined in [ENG-MKD-A-55] Article 55 of the Constitution: freedom of market and entrepreneurship and the equal legal position of all market entities.

MKD-2001-1-001
a) Republic of Macedonia / b) Constitutional Court / / c) 07.02.2001 / d) U.br.186/2000.

Keywords of the Systematic Thesaurus:

– General Principles – Weighing of interests.
– General Principles – General interest.
– Institutions – Executive bodies – The civil service.
– Fundamental Rights – Equality – Scope of application – Employment – In public law.
– Fundamental Rights – Civil and political rights – Freedom of opinion.
– Fundamental Rights – Civil and political rights – Freedom of expression.
– Fundamental Rights – Civil and political rights – Freedom of association.
– Fundamental Rights – Civil and political rights – Right to participate in political activity.

Headnotes:
State administrative bodies perform duties within their competence, independently and by virtue of the Constitution and laws. A state official is obliged to exercise his/her work impartially and free from influence from political parties. He/she should not be governed by his/her political convictions or personal financial interests and has to maintain and safeguard the dignity of his/her office. A state official must not display a political party’s symbols in the office.

Summary:
The Court did not uphold the alleged unconstitutionality of Articles 18.2, 28.3 and 28.4 of the Law on State Officials.

Article 18.2 contains several prohibitions on state officials whilst they are performing their jobs. State officials must not be influenced by political parties, personal political convictions or financial interests. A state official must not abuse his/her status and position, and is obliged to safeguard the dignity of his/her office. According to the second disputed provision, a state official must not display a party’s symbols in the office.

Bearing in mind the content of the provisions at stake, the Court found that they refer to the conflict between two values: the need to safeguard non-politicised state administration and freedom of political conviction and activity. The Court considered the proportionality of the disputed provisions with respect to the relevant constitutional rights.[ENG-MKD-A-16] Article 16.1 of the Constitution guarantees freedom of conviction, conscience, thought and public expression of thought. [ENG-MKD-A-20] Article 20 of the Constitution guarantees citizens the freedom to set up associations and political parties, including the freedom to join them or resign from them. [ENG-MKD-A-95] Articles 95.2 and [ENG-MKD-A-96] 96 of the Constitution ban political organisation and activity within state administrative bodies, which perform the activities under their jurisdiction independently and by virtue of the Constitution and laws.

Taking the aforementioned into consideration, the Court did not sustain the alleged unconstitutionality of the provisions in issue. The provisions aim to safeguard and strengthen the principles of legality and the impartiality of state administration. The law does not restrict a state official’s right to have political beliefs or financial interests, but rather states that they are not and cannot be relevant for his/her work. The influence of these elements would violate the principles of legality, equality and non-discrimination.

The ban on the display of a party’s symbols in the offices of state officials is justified by the need to protect the dignity and status of an office of the state, which is governed on behalf of the state, and not on behalf of a political party. This prohibition does not restrict the freedom of political conviction, expression and activity of a state official, but it is a condition for exercising the state office free from elements of ideological and political proselytising.

MKD-2000-3-010
a) Republic of Macedonia / b) Constitutional Court / / c) 22.11.2000 / d) U.br.85/2000 // e) Sluzben vesnik na Republika Makedonija (Official Gazette), 104/2000.

Keywords of the Systematic Thesaurus:

– General Principles – Social State.
– Fundamental Rights – General questions – Entitlement to rights – Natural persons.
– Fundamental Rights – Equality – Scope of application – Social security.
– Fundamental Rights – Equality – Criteria of distinction – Gender.
– Fundamental Rights – Economic, social and cultural rights – Right to social security.

Headnotes:
Persons with health insurance should have equal rights to compensation. Making the attainment of the right to compensation for wages lost during maternity leave dependent on the health insurance being paid for at least six months before the leave, puts women insured in a disadvantageous position in relation to others who were not restrained by the same condition.

Summary:
Following a petition lodged by an individual from Skopje, the Court partly repealed Article 14.1 of the Law on Health Insurance.

The Court had previously rejected Article 194.2 of the Law on Health Protection, according to which the insured was entitled to compensation for wages during maternity leave in identical circumstances, if the health insurance had lasted at least six months before the leave. The duration of time required to have insurance in that case to entitle a person to compensation was determined by labour regulations. The Court found that provision violated the constitutional special protection of maternity and woman workers, enshrined in [ENG-MKD-A-42] Articles 42.1 and [ENG-MKD-A-42] 42.3 of the Constitution, the principle of solidarity in [ENG-MKD-A-8] Article 8.1.8 of the Constitution, and the principle of equality in [ENG-MKD-A-9] Article 9 of the Constitution.

In its previous judgment, the Court did not constitutionally invalidate Article 17-a.1.1 of the Law amending the Law on Health Protection. That provision limited the general right to compensation for wages to persons with health insurance lasting at least six months before the occurrence of the event entitling them to compensation, unless the event was unforeseeable injury or illness. In that judgment, the Court had held that the attainment of health protection rights is directly connected with the payment of health insurance contributions. Therefore, the principle of insurance relied upon the different investments of persons insured within the fund and was not equal irrespective of the obligation to pay contributions.

In this case, the Court based its opinion upon constitutional provisions on social security and insurance, equality of citizens and the special constitutional position and protection of mothers and women workers.

Thus, according to [ENG-MKD-A-8] Article 8.8 of the Constitution, human dignity, social justice and solidarity are amongst the fundamental values of the constitutional order. [ENG-MKD-A-9] Article 9.2 of the Constitution guarantees the equality of all citizens before the Constitution and laws. The right to social security and social insurance is enshrined within [ENG-MKD-A-34] Article 34 of the Constitution, which prescribes this right to be regulated by law and collective agreement. [ENG-MKD-A-42] Articles 42.1 and [ENG-MKD-A-42] 42.3 of the Constitution protect maternity rights, children and minors in particular, and entitle mothers to special protection at work.

Article 12.1.1 of the Law on Health Insurance determines the right to compensation for lost wages during leave from work. The provision in question made the attainment of this right (in cases of maternity) dependant on the duration of health insurance (at least six months before leave started). The Court found this condition applicable only to women, who take maternity leave. It was therefore unconstitutional because it put women in an unequal position in relation to other insured persons, for which the law did not prescribe such dependence. The fact itself that grounds for the attainment of this right (maternity) differ from unforeseeable illness and injury was inappropriate to be treated as a ground to put this category of persons insured in a disadvantaged position to others. Herewith, the mother’s role in the biological reproduction and the need to safeguard the necessary conditions for the proper development of children has to be observed. The special constitutional protection of mothers and children must be taken into consideration as well.

In pursuance of the Law on Health Insurance, compulsory health insurance is based on the principle of solidarity and reciprocity between insurance rights and payments of the health insurance contribution. It means that the attainment of the right deriving from compulsory health insurance depends on the payment of a contribution, provided that it is paid by all persons insured. In the Court’s opinion, making the right of compensation for wages lost during maternity leave dependable to insurance duration is not in conformity with the principle of reciprocity and solidarity.

MKD-2000-3-009
a) Republic of Macedonia/ b) Constitutional Court // c) 15.11.2000 / d) U.br.103/2000.

Keywords of the Systematic Thesaurus:

– General Principles – Rule of law.
– General Principles – General interest.
– General Principles – Margin of appreciation.
– Institutions – Public finances – Central bank.
– Institutions – Public finances – State assets.
– Institutions – Transfer of powers to international organisations.
– Fundamental Rights – General questions – Limits and restrictions.
– Fundamental Rights – Equality.
– Fundamental Rights – Civil and political rights – Right to property.

Headnotes:
The state can determine the maintenance of the economic health of the country, its currency and its exchange rates as an issue of general interest and it can restrict the ownership and disposing of frozen foreign currency deposits in pursuance of that interest. By warranting these deposits, the state has entered into a debtor-creditor relationship with their owners. Therefore, it can issue bonds and regulate their payment. When the state provides funds for the payment of deposits, it can pass a laws specifying the interest rate. Since foreign currency depositors existing before the independence of the country are in a different legal position than those of the current foreign currency system, the question of equality of citizens in terms of foreign currency savings does not arise.

Summary:
The Court did not invalidate the Law on the Redemption of Foreign Currency Deposits of Macedonian citizens.

In the petitioner’s view, the Law in question was not in conformity with the principles of the rule of law, legal protection of ownership and of equality of citizens.

According to [ENG-MKD-A-3] Articles 3 and [ENG-MKD-A-6] 6 of the Constitution, the rule of law and the legal protection of ownership are fundamental principles of the constitutional order of the country.[ENG-MKD-A-30] Article 30 of the Constitution safeguards the right to ownership and of inheritance. According to [ENG-MKD-A-30] Articles 30.2 and [ENG-MKD-A-30] 30.3 of the Constitution, ownership creates rights and duties and should serve the well-being of both the individual and the community. No person may be deprived or restricted of his/her property and rights deriving therefrom, except in cases of public interest determined by law.

By virtue of [ENG-MKD-A-68] Article 68.2 of the Constitution, the National Assembly adopts laws and provides authentic interpretation for them.

The provisions indicated refer to the constitutional guarantee of the right to ownership and rights deriving therefrom, which cannot be deprived, nor restricted, except in cases of public interest determined by law.

However, there is a lack of accurate indications of the content of the public interest as a ground for restriction of ownership in the Constitution itself. Therefore, the Court found that in accordance with its own findings, the legislature is vested with the power to clarify the existence of a public interest in each case. The Court held that it was within the legitimate public interest of maintaining the general liquidity of the country’s payments to restrict ownership and disposition of a particular category of foreign currency savings.

In addition, the Law in question referred to foreign currency deposits of citizens held before monetary independence of the country for which the state has given a warranty for payment. This occurred in accordance with the Law on Warranty of the Republic for Foreign Currency Deposits of Citizens and for ensuring funds and their payment. That Law had in fact made the necessary adjustments to the country’s obligations to the new circumstances and its possibilities.

Therefore, the Court found that although the Law in question restricted the ownership of foreign currency savings deposits, it was not inconsistent with [ENG-MKD-A-8] Articles 8.3, [ENG-MKD-A-6] 6 and [ENG-MKD-A-30] 30 of the Constitution. This was because the total payment or payment with a prescribed interest rate of deposits would have put into question the country’s general liquidity and its internal or external payments, which was unquestionably an issue of public interest.

On the other hand, by giving the warranty, the country entered into debtors-creditor relationships with saving deposit owners. Thereby, it is entitled to issue bonds binding itself to pay the holder the nominal value of the savings with interest of 2%. The convergence of the savings into the Euro, according to the average exchange rate of the National Bank of Macedonia, did not depreciate their value.

The Court found that in specifying the interest rate at 2%, the state took into consideration its material capability. The Court defined the fact that the state is providing the necessary funds for the payment of savings as ground for such authorisation.

The disputed Law did not put into question the equality of citizens in the sphere of foreign savings. The legal regime for foreign currency savings existing before the monetary independence of the country differs from the current regime regulated under the Law on Foreign Currency Operation. It presupposed a different legal position for old foreign currency depositors in relation to those in the present system.

The Court also did not accept the petitioner’s claim to sustain the savings card as a saver’s document. By recording the bond into the registry of long-range securities, citizens become owners of those bonds. Thereby, the right to ownership of foreign currency deposits is changed into another type of ownership – ownership of bonds, being regulated by regulations on securities and not by regulations on savings deposits.

MKD-2000-3-008
a) Republic of Macedonia / b) Constitutional Court / / c) 27.09.2000 / d) U.br.92/2000.

Keywords of the Systematic Thesaurus:

– General Principles – Market economy.
– Fundamental Rights – Equality.
– Fundamental Rights – Economic, social and cultural rights – Commercial and industrial freedom.

Headnotes:
The determination of retailers’ working hours does not restrict the freedom of the market and entrepreneurship but aims to maintain public order. The Constitutional guarantee of an equal legal position for all market entities refers to those having the same or similar scopes of operation.

Summary:
Considering the petition lodged, the Court did not invalidate certain provisions of the Book of Regulations on the Determination of Working Hours in Retail Trade, passed by the Ministry of Trade.

According to the challenged provisions, non-essential retail shops can only open between the hours of 8.00 am and 11.00 pm or 12.00 pm during summer time. During holidays and on Sundays, they can be open from 8.00 am until 11.00 am. ‘Traffic retail shops’ – those selling daily newspapers and tickets for city transport – can remain open for 24 hours each day during the week. The act in question also stated that gas stations can remain open 24 hours a day.

In the petitioner’s view, such a restriction of working hours restricted freedom of the market and entrepreneurship, i.e. it enabled a monopoly position to be obtained by retailers selling daily newspapers and tickets for city transport and by those operating through gas stations. Therefore, they submitted, the disputed provisions were inconsistent with [ENG-MKD-A-55] Article 55.3 of the Constitution.

In its decision, the Court held that Article 12 of the Law on Trade, which authorised the Ministry of Trade to determine opening hours for retail shops, was the legal basis for the adoption of the Book of Regulations in question. Tradesmen were liable to comply the Minister’s act.[ENG-MKD-A-8] Article 8.7 of the Constitution defines the freedom of the market and entrepreneurship as a fundamental value of the constitutional order of the country.[ENG-MKD-A-55] Article 55 of the Constitution guarantees freedom of market and entrepreneurship. Thereby, the state ensures an equal legal position to all market entities and undertakes measures to prevent one entity gaining a monopoly position or monopolistic behaviour in the market. According to [ENG-MKD-A-55] Article 55.3 of the Constitution, the freedom of the market and entrepreneurship can be restricted by law only if it is for the purposes of the defence of the Republic, the protection of the environment, or public health.

Having this in mind, the Court concluded that this freedom could not be taken as a private matter for market entities, because the state itself, while safeguarding this freedom has a significant role as regulator of the country’s economic development. Therefore, the determination of opening hours in retail the trade aims to safeguard public order and cannot restrict the freedom of the market and entrepreneurship, nor can it establish a monopolistic position in the market for certain entities.

In respect to the longer hours ‘traffic retail shops’ and gas stations were allowed to open, the Court found the regulations did not create inequality or a monopoly position, because the nature and scope of the activities involved was different. The basic activity of gas stations is selling oil and oil derivatives. The basic activity of ‘traffic retail shops’ was selling daily newspapers and tickets for city transport. Bearing in mind the need for these kinds of goods, the opening hours of these shops is longer than that of other retail shops selling a wider assortment of non-essential goods, which according to the Book of Regulations in question have restricted opening hours. Regarding the question whether gas stations and retail shops selling only daily newspapers and tickets sell other goods as well, the Court found that this was a matter of fact which it was not competent to determine.

MKD-2000-3-007
a) Republic of Macedonia / b) Constitutional Court / / c) 13.09.2000 / d) U.br.77/2000 // e) Sluzben vesnik na Republika Makedonija (Official Gazette), 76/2000.

Keywords of the Systematic Thesaurus:

– General Principles – Social State.
– General Principles – Rule of law.
– General Principles – Certainty of the law.
– General Principles – Weighing of interests.
– Institutions – Executive bodies – The civil service.
– Fundamental Rights – Equality – Scope of application – Social security.
– Fundamental Rights – Equality – Criteria of distinction.
– Fundamental Rights – Equality – Criteria of distinction – Gender.
– Fundamental Rights – Economic, social and cultural rights – Right to social security.
– Fundamental Rights – Economic, social and cultural rights – Right to a pension.

Headnotes:
The legislature is vested with the power to regulate issues within the sphere of employment and social security. The regulation of these issues must be consistent with the equality of citizens before the law and the Constitution. Such regulation must also be consistent with human rights and freedoms, irrespective of sex, race, colour, national and social origin, political and religious conviction, property and social status. The termination of employment and the fixing of the age of retirement cannot be regulated beyond and parallel to current employment pension and insurance legislation.

Summary:
A group of 27 petitioners including individuals and associations of citizens lodged a petition with the Court challenging the constitutionality of the Law on Attaining a Premature Pension. The Court declared the Law to be void.

The Law in question specified the terms for attaining a premature pension for state employees. Men aged at least 63 years and women aged 58.5 years were entitled to premature pensions if they had worked for the body for a period of at least 20 years. Those who had worked for a body for at least 35 years were also entitled to a premature pension, regardless of their age or sex.

The Law entitled certain employees in higher education (readers and professors) and in public scientific institutions (scientific associates, senior scientific associates and scientific counsellors) to take voluntary retirement. The Law was of temporal duration, it would have been implemented until the end of 2000.

In making its decision, the Court took into consideration constitutional provisions regulating the rights and status of employees, the right to social security and insurance, as well as the principle of equality.

According to [ENG-MKD-A-32] Article 32.5 of the Constitution, the exercise of the rights of employees and their position are regulated by law and collective agreements.[ENG-MKD-A-34] Article 34 of the Constitution guarantees citizens the right to social security and social insurance determined by law and collective agreement.

The Court thus concluded the legislature’s right to regulate issues regarding the termination of employment and the attainment of the right to a pension is indisputable. The Court stated that it is inevitable that these issues cannot be regulated without observing the principle of equality and non-discrimination. Judging its content, the Court found that the Law disregarded the principle of equality on several grounds:

a. the Law referred only to some, not all state employees, this implied unequal treatment of citizens who were otherwise in an equal social position;

b. the Law prescribed the possibility for voluntary premature retirement of certain state employees, it thus treated other persons in the same social position unequally;

c. the Law only allowed certain employees of higher educational and scientific institutions to apply for voluntary premature retirement;

d. the Law was of temporal validity only, thus it would have been only effective to some employees, not to others;

e. because the Law applied to both men and women the same period of working time required for eligibility for a premature pension where at least 35 years had been served, the Law introduced inequality in terms of gender by specifying a different threshold where eligibility is based on age;

f. gender inequality appeared in the determination of a different percentage of the pension basis for a man and woman, where they had identical years of working time.

The Court also took into consideration the parallel existence of employment regulation and of the pension system (the Law on Labour Relations and the Law on Pension and Disability Insurance) consisting distinct provisions on employment termination and the attainment of the right on retirement.

Another ground justifying the Court’s opinion was the principle of legal safety and the rule of law. Since the Law has altered the employment and pension rights of state employees but not other employees, the Court found that the Law violated legal safety, a constituent element of the principle of the rule of law.

MKD-2000-2-006
a) Republic of Macedonia / b) Constitutional Court / / c) 12.07.2000 / d) U.br.32/2000 // e) Sluzben vesnik na Republika Makedonija (Official Gazette), 79/2000.

Keywords of the Systematic Thesaurus:

– Fundamental Rights – Civil and political rights – Right to dignity.
– Fundamental Rights – Civil and political rights – Right to private life.
– Fundamental Rights – Civil and political rights – Right to family life.

Headnotes:
Safeguarding human dignity is a fundamental human right and a pre-condition for implementing humanity, a fundamental principle of the constitutional order. Human dignity does not relate only to living people; its protection also covers deceased persons. Making it a crime to place photographs, statements or other memorial on the tomb of deceased persons who were enemies during World War II or enemies of the social and political system of the Republic, infringes the right to be buried in a normal, decent way. It also violates without justification fulfilment of the moral duty of persons related to the deceased to bury a relative in such a way.

Summary:
The Constitutional Court partially annulled a provision of the Law on offences against public order and peace, finding it contrary to constitutional provisions related to human dignity and reputation.

Article 18.a.2 of the law provided for imprisonment for a term of between 40 and 60 days for anyone who places on a tomb or other public place, a statement, photograph or other memorial to a person who died as an enemy to the national liberation war or to the social and political system of the Republic.

While making its decision, the Court took into consideration constitutional provisions related to human dignity and reputation and to the principle of equality. [ENG-MKD-A-8] Article 8.8 of the Constitution defines humanity amongst the fundamental principles of the constitutional order. According to [ENG-MKD-A-9] Article 9 of the Constitution, all citizens of the Republic are equal in their freedoms and rights irrespective of sex, race, colour of skin, national and social origin, political and religious beliefs, property and social status. In addition, all citizens are equal before the Constitution and laws. [ENG-MKD-A-11] Article 11 of the Constitution defines the human right to moral and physical integrity as irrevocable. [ENG-MKD-A-25] Article 25 of the Constitution safeguards respect for and protection of the privacy of every citizen’s personal and family life and of his/her dignity and reputation.

Bearing in mind the above, the Court found that the disputed provision had implications for human dignity, a constitutional value which is enshrined within the constitutional concept of human rights and freedoms. While human dignity requires protection in respect to living people, it cannot be detached from those deceased. Although respect towards deceased can be shown in different stages and forms, the Court found that an elementary condition for respecting the human dignity of the deceased is for a person to be buried according to existing practice and legal principles, irrespective of that person’s merits or sins with regard to the social community. It also includes the right of the deceased’s relatives not to be prevented from burying a relative in a normal, decent way.

According to current regulation (the Law on graveyards), a decent and proper burial, bearing in mind differences related to religious and national affiliation, includes placement of signs, photographs, inscriptions, memorials or cenotaphs.

Therefore, the Court found that making it a crime to place photographs, inscriptions or cenotaphs on the tomb of deceased persons who were enemies of the national liberation war or the social and political system of the country, violates the elementary respect for human dignity in two ways: by depriving the deceased of his/her right to be buried in a decent and proper way; and by violating the moral duty of the deceased’s relatives to bury him/her in such a way.

MKD-2000-2-005
a) Republic of Macedonia / b) Constitutional Court / / c) 12.07.2000 / d) U.br.220/99 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 57/2000.

Keywords of the Systematic Thesaurus:

– Sources of Constitutional Law – Categories – Written rules – International instruments – European Convention on Human Rights of 1950.
– General Principles – Rule of law.
– Fundamental Rights – General questions – Limits and restrictions.
– Fundamental Rights – Equality – Scope of application – Employment – In private law.
– Fundamental Rights – Equality – Criteria of distinction – Religion.
– Fundamental Rights – Civil and political rights – Freedom of conscience.

Headnotes:
The enjoyment of a statutory based right (the right to leave during a religious holiday) which derives from exercising a certain freedom (freedom of religion) has to be based on objective facts supported by evidence. The rule of law, understood as the supremacy of objective legal norms over subjective will and the existence of relatively objective criteria for ascertaining a citizen’s affiliation to a certain religious belief, requires the determination of objective facts related to such a right being enjoyed.

Summary:
The Court refused an individual’s request for protection from discrimination based on religious affiliation resulting from a judgment of the Court of Appeal. Due to a lack of procedural presumption for decision-making, stated by the Rules of procedure of the Court (expiration of two months after delivery of the act), it rejected the request in part dealing with singular acts, which in the petitioner’s opinion violated his right.

The petitioner’s request was based both on procedural and substantive grounds. The procedural ground referred to the constitutional protection of human rights and freedoms before regular courts and the Constitutional Court, through a procedure based upon the principles of priority and urgency ([ENG-MKD-A-50] Article 50 of the Constitution). The substantive ground took into consideration several principles:

– the principle of equality of citizens in enjoying their rights and freedoms ([ENG-MKD-A-9] Article 9 of the Constitution);

– the constitutional right of citizens freely to express their confession ([ENG-MKD-A-19] Article 19 of the Constitution);

– the impossibility of individual rights and freedoms being withheld because of affiliation to or practice of a certain religion, including the impossibility of a ban on becoming a member of a religious community (Article 4 of the Law on religious communities and religious groups);

– [ENG-ECH-0-9] Articles 9 and [ENG-ECH-0-14] 14 ECHR, which guarantee everyone the freedom to manifest his/her religion, provided that the enjoyment of rights and freedoms is without discrimination based on any religion.

The facts of the case were as follows. The petitioner, a Macedonian who celebrated Christian holidays, left his office two working days on the first days of Ramazan Bajram and Kurban Bajram – holidays in the Muslim religion. Since he did not obtain leave, in first instance he was dismissed, which was later replaced with a fine. The petitioner justified the leave on the ground that he accepted the Muslim religion. Therefore, those days were not working days for him (according to the Law on holidays in the Republic of Macedonia) and he could not be made to bear any damaging consequences on that account. However, neither the employer nor the courts in two instances accepted his claim that he accepted the Muslim religion, and considered that his leave was unjustified.

The fact that the petitioner’s claim that he is affiliated to the Muslim religion was not accepted and that he was asked to prove such religious belief meant that the petitioner felt discriminated against. In his opinion, the Constitution guarantees the freedom of religion as a personal conviction, the expression of which is part of one’s privacy and therefore no one is obliged to prove it. The petitioner based the protection of his rights and freedoms only on his claim that he was affiliated to the Muslim religion indicating that neither he nor anyone else should be required to prove such an assertion.

In making its decision, the Court found it crucial to settle the following preliminary question: is the expression of the citizen’s will sufficient to enjoy a certain right deriving from a freedom or must the citizen rely on objective facts which should be supported by evidence?

Taking into account that the rule of law is one of the fundamental principles of the constitutional order and that there are objective criteria for ascertaining a citizen’s affiliation to a particular religion, the Court judged that objective facts related to the enjoyment of a right have necessarily to be verified. Taking the rule of law as the supremacy of objective legal norms over subjective will, and after a public hearing and several consultations had been held, and especially bearing in mind the petitioner’s statement, the Court found that the contents and form of his religious belief did not objectively correspond to that of the Muslim religion on several grounds. For example, he did not know the basic premises of that religious system, through which the essence of such belief is expressed; nor did he know how to enter this belief. Therefore, the Court found that the petitioner had not been discriminated against by the Court of Appeal’s judgment, i.e. the fact that the court entered into fact-finding and determined objective facts had not put the petitioner in a disadvantageous position in comparison to other citizens based on his religious belief.

MKD-2000-2-004
a) Republic of Macedonia / b) Constitutional Court / / c) 14.06.2000 / d) U.br.140/99 .

Keywords of the Systematic Thesaurus:

– Constitutional Justice – Jurisdiction.
– General Principles – Separation of powers.
– Institutions – Head of State – Powers – Relations with the executive powers.
– Institutions – Executive bodies – Powers.
– Institutions – Executive bodies – Liability – Political responsibility.
– Institutions – Transfer of powers to international organisations.

Headnotes:
An Act passed by the government establishing diplomatic relations with a certain state does not have the features of a ratified international agreement which is part of the internal legal order. It is an act through which a state, i.e. its authorised bodies, demonstrates its political will to establish diplomatic relations with another state. Therefore, it cannot be subject to judicial review, only political control exercised within the framework of parliamentary democracy.

Summary:
The Court rejected the petition lodged by an individual challenging the Government Decision establishing diplomatic relations between the Republic of Macedonia and the Republic of China.

The petition was based on several grounds:

– that the decision in question disputed and was contrary to acts adopted previously (UN Resolution no. 2758 of 1971 which, upon succession, became part of the internal legal order and the common bilateral communiqué signed between the Republic of Macedonia and the Republic of China (Taiwan), as a binding international act);

– several international agreements ratified with the Republic of China (Taiwan), including clauses regarding its territorial unity.

Thus, the petitioner claimed that the disputed act distorted the legal hierarchy and the validity of laws and ratified international agreements.

The petitioner also argued that the decision in question was contrary to [ENG-MKD-A-119] Article 119 of the Constitution, according to which the President of the Republic is vested with the power to conclude international agreements on behalf of the state. In the petitioner’s opinion this right derives directly from the Constitution and means that the government has such a mandate only if provided by law.

In deciding the case, the Court found it necessary to consider not only the form of the disputed Decision, but also its essential characteristics, which determine its nature in relation to [ENG-MKD-A-91] Articles 91.8, [ENG-MKD-A-91] 91.9, [ENG-MKD-A-118] 118 and [ENG-MKD-A-119] 119 of the Constitution.

According to [ENG-MKD-A-91] Articles 91.8 and [ENG-MKD-A-91] 91.9 of the Constitution, the Government of the Republic is vested with the power to recognise states and governments and to establish diplomatic and consular relations with other states. government acts through which these authorisations are administered have a political character, as those for conducting specific international policy. Although they produce consequences of a legal nature, they are not part of the internal legal order, either as legal sources (regulations) or as acts whose contents are legally defined (except in relation to the power for their adoption).

On the contrary, [ENG-MKD-A-118] Articles 118 and [ENG-MKD-A-119] 119 of the Constitution refer to another area of international relations, international agreements, which under certain circumstances become part of the internal legal order and can thus be subject to judicial review. In this situation, the government is in a different position from that enshrined in [ENG-MKD-A-91] Articles 91.8 and [ENG-MKD-A-91] 91.9 of the Constitution (here it is determined by the Constitution and law).

Taking all this into consideration, the Court found that the disputed decision cannot be considered as falling within [ENG-MKD-A-118] Articles 118 and [ENG-MKD-A-119] 119 of the Constitution. The nature of government authorisation stipulated in Article 91 determines the very nature of the disputed decision. It is an act through which a state, i.e. its authorised bodies, expresses its political will to establish diplomatic relations with another state, without having the character of a regulation which is part of the internal legal order. Therefore, the Court found that it was not competent to judge the constitutionality of this act, which can be subject to political control within the framework of parliamentary democracy.

MKD-2000-2-003
a) Republic of Macedonia / b) Constitutional Court / / c) 23.05.2000 / d) U.br.6/2000.

Keywords of the Systematic Thesaurus:

– General Principles – Rule of law.
– Institutions – Head of State – Term of office – End of office.
– Institutions – Legislative bodies – Powers.
– Fundamental Rights – Equality – Scope of application – Employment – In public law.

Headnotes:
The absence of an explicit constitutional mandate for the Assembly of the Republic of Macedonia to pass a particular statute in order to regulate certain issues (the rights of the President of the Republic after expiration of his or her term of office) is not an obstacle to the adoption of the statute, when it is determined to be useful.

A law which determines the rights and status of the State President after expiration of his or her term of office differently from other citizens does not violate the principle of equality, which presupposes equal conditions.

Summary:
On a petition lodged by an individual from Skopje, the Court did not commence proceedings for assessing the constitutionality of the Law on the rights of the President of the Republic of Macedonia after expiration of his or her term of office. The petitioner challenged the constitutionality of this law on the grounds of a lack of constitutional basis for its adoption and because it violated the principle of citizens equality, enshrined in [ENG-MKD-A-9] Article 9 of the Constitution.

An analysis of the contents of the disputed law showed that it stipulates several rights to which the President of the state is entitled after expiration of his or her term of office. The State President is entitled to a presidential pension equal to the President’s salary; to office and professional staff; to personal security and protocol status; to burial costs; to costs up to 8% of budgetary funds scheduled for the President of the Republic; and family members are entitled to a pension of up to 70% of the Presidential pension.

In the Court’s opinion, the Assembly of the Republic of Macedonia, as legislative body, has general authorisation to pass statutes in order to regulate relations in all domains of social life. Besides, in some cases it is obliged to adopt certain laws, sometimes with a two-thirds majority. Therefore, although there isn’t a clear, direct constitutional authorisation for the Assembly to regulate this particular area by passing a law, it is still its constitutionally based right.

The privileged status this law offers to the state President after expiration of his or her office in relation to other citizens is the second argument on which the petitioner based his petition. The disputed statute determines the rights and status of the state President after expiration of his or her office differently from other citizens. Nonetheless, the Court judged that the function and aims of the disputed law, including the fact that the principle of equality presupposes equal conditions, are commencing criteria essential for judging its constitutionality. Besides, the Court judged that the purpose of this law is not to grant privileges to individual persons after expiration of the President’s office, but to regulate the status and dignity of the office itself. Thereby, the status of those who held this office is guaranteed. The disputed law shows the state approach towards the President of the Republic. Therefore, the question of equality of ex-presidents of the Republic with other citizens cannot be treated as an abstract relation, irrespective of the specific conditions that generate distinct treatment.

MKD-2000-1-002
a) Republic of Macedonia / b) Constitutional Court / / c) 19.04.2000 / d) U.br.195/99 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 36/2000.

Keywords of the Systematic Thesaurus:

– Constitutional Justice – Jurisdiction – The subject of review – Rules issued by the executive.
– General Principles – Relations between the State and bodies of a religious or ideological nature.
– General Principles – Legality.
– Institutions – Executive bodies – Powers.
– Fundamental Rights – Civil and political rights – Freedom of conscience.
– Fundamental Rights – Civil and political rights – Freedom of worship.

Headnotes:
The freedom of religion includes the right of individuals to determine freely and independently their religious affiliation as well as their acceptance or non-acceptance of a certain religion or atheism. It means, for example, that everyone is free to decide whether to profess or not to profess a certain religion and whether to participate or not to participate in religious ceremonies.

The state can neither require nor order the carrying out of religious activities of any kind anywhere.

Summary:
The Helsinki Committee for Human Rights lodged a petition challenging the act of the Ministry of Education introducing a religious blessing at the beginning of the school year in elementary and secondary schools. The petitioner argued that the act was not in conformity with [ENG-MKD-A-19] Article 19 of the Constitution and certain provisions of the Law on Elementary Education and the Law on Secondary Education.

The challenged act required elementary and secondary school principals to call pupils, teachers and other school employees together at the beginning of the school year and to invite parish priests to bless all for the happy commencement and successfulness of the new school year. According to the act, in areas where more than one religious conviction existed, religious leaders of each conviction concerned should pronounce such a blessing.

Although the act did not fulfil the criteria of a regulation, the Court found that its contents undoubtedly amounted to generally binding legal provisions that had been passed by a state body. Thus, the act introduced religious activity within elementary and secondary schools as a regulated and perpetual legal relation, which would continue to be valid and enforceable, irrespective of the fact that it referred only to the commencement day of the school year – 1 September 1999.[ENG-MKD-A-16] Article 16.1 of the Constitution guarantees the freedom of conviction, conscience, opinion and public expression of opinions. As a specific kind of freedom of conviction and conscience, the freedom of religious confession and its free and public expression, whether individual or collective, are guaranteed by [ENG-MKD-A-19] Articles 19.1 and [ENG-MKD-A-19] 19.2 of the Constitution. According to [ENG-MKD-A-19] Article 19.3 of the Constitution, the Macedonian Orthodox Church and other religious communities and groups are separate from the state and equal before the law.

Furthermore, the Law on Elementary Education (Article 13.1) bans political and religious ceremonies and activities in elementary schools and the Law on Secondary Education (Article 7.1) bans such activities within secondary schools.

In reaching its decision, the Court observed two crucial facts: first, the act introduced religious activities in elementary and secondary schools and second, it is enforced by the legal order of the state. Therefore, the basis for judging the constitutionality and legality of the challenged act was the principle of the separation of the state from religious communities and groups and the extent of the state’s neutrality, as crucial factors in the realisation of the freedom of religion.

Bearing this in mind, it can be concluded that the state cannot interfere in religious matters, whether to incite religious affiliation or to prevent the expression of a religious conviction. It cannot impose religious activities or ceremonies as socially desirable activities. Without delineating possible means of regulating the relations between the state and religious communities and groups, or more generally, between the state and the freedom of religion, one principle is nevertheless incontrovertible: the state can neither require nor order the carrying out of religious activities of any kind anywhere.

Furthermore, bearing in mind the above-mentioned statutory provisions, the Court found that the act was contrary to the provisions of the Law on Elementary Education and the Law on Secondary Education, as it introduced religious activities or ceremonies within elementary and secondary schools.

MKD-2000-1-001
a) Republic of Macedonia / b) Constitutional Court / / c) 16.02.2000 / d) U.br.19/00.

Keywords of the Systematic Thesaurus:

– General Principles – Democracy – Pluralist democracy.
– Institutions – Legislative bodies – Composition – Election of members.
– Institutions – Elections and instruments of direct democracy – Electoral campaign and campaign material.
– Institutions – Elections and instruments of direct democracy – Electoral campaign and campaign material.
– Fundamental Rights – General questions – Limits and restrictions.
– Fundamental Rights – Civil and political rights – Freedom of assembly.

Headnotes:
The responsibility imposed on the organiser of a public election meeting to notify the Ministry of the Interior of such a meeting in advance is intended to protect citizens and to create the conditions necessary for peaceful assembling. It also aims to preserve the public peace and order in the interests of citizens not participating in the meeting.

Summary:
The Court rejected a petition lodged by an individual from Skopje requesting it to examine the constitutionality of certain provisions of the Law on the Election of Members of the Parliament.

According to Article 53 of the challenged Law, when organising gatherings in public places and places of public thoroughfare during an election campaign, the organiser of the election campaign must notify the Ministry of the Interior in writing at least 48 hours before the gathering is held.

The second provision challenged (Article 116.1.1 of the Law) provided for a fine to be imposed on political parties that failed to observe this obligation.

In its opinion, the Court took into consideration one of the fundamental values of the constitutional order, namely political pluralism and free, direct and democratic elections (as laid down in [ENG-MKD-A-8] Article 8.1.5 of the Constitution).

According to [ENG-MKD-A-21] Article 21 of the Constitution, citizens have the right to assemble peacefully and to express public protest without the need to make a prior announcement or to obtain a special licence. The exercise of this right may be restricted only during a state of emergency or war.[ENG-MKD-A-54] Article 54 of the Constitution states that the freedoms and rights of the individual and citizen can be restricted only in cases determined by the Constitution.

The manner of and conditions for the election of members of parliament are regulated by law adopted by a majority of the total number of representatives ([ENG-MKD-A-62] Article 62.5 of the Constitution).

The Law in question provides that political parties have the right equally and under equal conditions to use all kinds of political campaign materials and means of providing information, the purpose of which is to influence the decision-making of electors with respect to their choice of candidates. Article 52 of the Law designates the organiser of a meeting as responsible for keeping order during such a pre-election meeting.

Bearing the above in mind, the Court concluded that public meetings concerning an election campaign cannot be treated as ones where citizens demonstrate their protest. Instead, their purpose is to present the program and candidates of certain political parties in order to influence electors’ decisions with respect to the candidates. Therefore, this kind of meeting does not fall within the ambit of [ENG-MKD-A-21] Article 21 of the Constitution, which is restrictive in nature, referring only to cases of peaceful assemblies aimed at expressing public protest.

Furthermore, many parties participate in the election campaign itself. Many people, depending on their political affiliation, participate in public meetings where they express their support for a certain candidate or program. Therefore, there is a possibility that several parties presenting different programs or promoting different candidates may organise meetings simultaneously and at the same place. The responsibility of organisers to notify the competent ministry (the Ministry of the Interior) in advance is primarily aimed at protecting citizens and creating the conditions necessary for peaceful assembling. Furthermore, the requirement to provide such notification is in line with the need to maintain public peace and order and to protect citizens not participating in the meeting.

The imposition of a statutory fine on a political party that fails to observe this obligation is a logical consequence of the material provision according to which the organiser must notify the competent body at least 48 hours before the meeting is to be held.

Therefore, the Court found that the challenged provisions were not inconsistent with the constitutional principle of political pluralism, nor did they violate human rights and freedoms.

MKD-1999-3-010
a) Republic of Macedonia / b) Constitutional Court / / c) 10/11/1999 / d) U.br.114/99 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 76/99.

Keywords of the Systematic Thesaurus:

– General Principles – Weighing of interests.
– Fundamental Rights – Equality – Criteria of distinction – Religion.
– Fundamental Rights – Civil and political rights – Freedom of conscience.
– Fundamental Rights – Civil and political rights – Freedom of worship.
– Fundamental Rights – Civil and political rights – Freedom of expression.

Headnotes:
Religious rituals and actions can be performed in other places accessible to citizens besides those stated by law without prior authorisation given by the Ministry of Interior and an opinion provided by the competent state administrative body, i.e. without prior notification. Such freedom derives from the constitutional guarantee of free and public expression of religious confession.

Summary:
The Helsinki Committee on human rights lodged a petition challenging certain provisions of the Law on religious communities and religious groups. According to the petitioner, the provision at issue (Article 19) led to the unequal treatment of traditional and non-traditional churches, with the state giving preference to traditional ones. The challenged provision provided that non-traditional rituals and religious actions could be performed in other places accessible to citizens, with the prior authorisation of the Ministry of Interior and after obtaining an opinion from the state administrative body responsible for religious communities and groups. The request for authorisation had to be submitted 15 days before the ritual was due to be held and had to indicate the type of ritual, who would perform it, its aim as well as when and where it would take place. The competent administrative body was obliged to clear or ban the ritual 7 days before it was to be held. As an exception, in the case of traditional rituals and religious actions, only prior notification to the state administrative body responsible for religious communities and groups was required.

In its decision, the Court took into consideration the overall content of the statutory regulation of the freedom of religious confession.

According to Article 18 of the Law, rituals and religious actions are held in churches, mosques and other temples and in their gardens and graveyards. Article 18.2 provides that these rituals and religious actions cannot be contrary to public order and peace, or in violation of religious beliefs and other freedoms and the rights of citizens who are not affiliated with that church or religious group.

Article 20 of the law does not require any special authorisation for religious rituals which in accordance with the law are requested by a citizen and are held in his or her home (family celebration, wedding, baptism, prayer session, blessing of house or other property etc.).

The provision at issue required prior compulsory authorisation given by the Ministry of Interior and an opinion by the administrative body responsible for religious communities and groups for non-traditional rituals and religious actions held in other places accessible to citizens. Nonetheless, for traditional rituals and religious actions, the law only required notification to the competent administrative body. “Other places accessible to citizens” are places other than those stated in Article 18 and 20 of the law (churches, mosques and other temples, their gardens and graveyards, and believers’ homes).

According to [ENG-MKD-A-19] Article 19.2 of the Constitution, the expression of religious confession through rituals and religious actions, individually or with others, is free (without procedural restrictions) and public. Such actions cannot be performed in a way which jeopardises other constitutionally determined values, including the freedoms and rights of other citizens.

Therefore, the Court judged that the statutory provision which imposed the requirement on non-traditional churches to obtain prior compulsory authorisation from the Ministry of Interior and an opinion from the administrative body responsible for religious communities and groups and for traditional churches to notify the competent administrative body in order to perform rituals and religious actions in other places accessible to citizens, restricted the freedom of free and public expression of religious confession, individually or with others.

The Court also set aside Article 23 of the law, which required persons authorised to represent religious groups to provide the competent administrative body with an application for each modification or termination of the group. The provision also fixed the time limit for submission (30 days after the decision on modification or termination).

Supplementary information:
The Court relied on a prior decision, Bulletin 1998/3 [MKD-1998-3-009], it had delivered repealing certain provisions of the law which authorised the administrative body responsible for religious communities and groups to administer and govern a special register for religious communities and religious groups. According to Articles 13 and 14 of the law, this body was entrusted with the administration of the register of religious communities and groups and the adoption of specific rules concerning its contents and regulation. The Court found these provisions to be contrary to the constitutional principle of freedom of religion and the constitutional guarantee of separation of churches and religious groups from the state.

MKD-1999-3-009
a) Republic of Macedonia / b) Constitutional Court / / c) 06/10/1999 / d) U.br.104/99.

Keywords of the Systematic Thesaurus:

– Fundamental Rights – General questions – Entitlement to rights – Foreigners.
– Fundamental Rights – Equality – Criteria of distinction – Citizenship.
– Fundamental Rights – Civil and political rights – Freedom of assembly.

Headnotes:
Foreign nationals enjoy freedoms and rights guaranteed by the Constitution, under conditions regulated by statute and international agreements. Foreign nationals can organise public meetings if these meetings are notified to and approved by the Ministry of Interior.

Summary:
According to the provision at issue of the Law on public meetings, foreign nationals can convene and hold a public meeting if they give prior notification to the Ministry of Interior, which has to authorise it. The petitioner claimed that the Constitution provided such a right only for domestic citizens and not for foreign nationals.

According to [ENG-MKD-A-29] Article 29.1 of the Constitution, foreign nationals enjoy freedoms and rights guaranteed by the Constitution, under conditions regulated by statute and international agreements.

The Constitution neither enumerates the freedoms and rights of foreign citizens nor prescribes the way of their restriction. It only provides that laws and international agreements should define these freedoms and rights. The Court stated that this provision gives foreign nationals the right to organise public meetings and provides that statute and international agreements should determine the conditions for such assembly.

Article 8 of the Law on public meetings determines the conditions under which foreign nationals can organise public meetings: notification of the meeting to and authorisation by the Ministry of Interior.

Therefore, the Court judged that Article 8 of the Law on public meetings is not inconsistent with the Constitution.

MKD-1999-3-008
a) Republic of Macedonia / b) Constitutional Court / / c) 06/10/1999 / d) U.br.47/99 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 68/99.
Keywords of the Systematic Thesaurus:

– Sources of Constitutional Law – Techniques of review – Literal interpretation.
– General Principles – Legality.
– Institutions – Federalism, regionalism and local self-government – Municipalities.
– Institutions – Federalism, regionalism and local self-government – Basic principles – Autonomy.
– Institutions – Federalism, regionalism and local self-government – Basic principles – Autonomy.
– Fundamental Rights – Economic, social and cultural rights – Commercial and industrial freedom.

Headnotes:
Local self-government units cannot fix the price of local public transport services. According to the Law on road transport, they only have the power to specify the system for determining the cost of such transport. Statutory authorisation to local self-government units to specify the tariff system is one of the methods for state regulation of public-utility services and is different from that of price fixing.

Summary:
The act at issue, a decision specifying the tariff system for public transport passed by the Council of the city of Skopje, prescribed three zones for transport services in the city and its vicinity. The zones covered all existing transport lines in the city of Skopje and its municipalities. The decision specified bus stations on the borderline of each of the zones individually and indicated the tariff number for each zone. The tariff number determined the cost of travel in each zone. The decision also required transport organisations to submit their price list for services charged for each connection line separately.

According to the Law on local self-government units, municipalities can regulate local transport autonomously in accordance with law. The Law on the city of Skopje regulates local transport in accordance with law.

The Law on public-utility services, which refers to public transport in cities and other inhabited areas, with the exception of railway transport, defines local public transport as a public service.

The Law on road transport regulates the specific terms of its exercise and reiterates the competence of the municipality, i.e. the city of Skopje, to regulate the local public transport, especially its right to determine the tariff and payment system. The basic question derived from this provision was whether the city’s competence to determine the tariff and payment system included the right to fix the price charged by a public undertaking set up by the city and by private transport companies providing the same transport services.

In answering this question, the Court first considered the literal interpretation of the term used in the Law on road transport. Bearing in mind that the law deals with the term “tariff system”, not “tariff”, the Court judged that the municipality, i.e. the city, does not have the power to determine the tariff (price) for transport services, but only to specify the way (system) in which tariffs are fixed, which would bind all transport organisations, public and private. The judgement took into consideration the theoretical meaning of “tariff system”, meaning a framework which lays down all the criteria necessary to fix the tariff (price) of local transport services.

In the Court’s opinion, such regulation is a form of state intervention in the sphere of public-utility services. It is a measure introduced by the state in order to regulate certain spheres of operation of public-utility enterprises, irrespective of whether they are state owned, local or private. It is primarily focused on establishing a reasonable level of prices for customers.

Bearing in mind that the decision at issue fixed the price of local public transport services and did not merely determine the value of a zone (as claimed by the city), the Court judged that it was not in conformity with the Law on road transport. Therefore, the city had exceeded its powers under the Law on road transport.

MKD-1999-2-007
a) Republic of Macedonia” / b) Constitutional Court / / c) 09/06/1999 / d) U.br.32/99 // e) Sluzben vesnik na Republika Makedonija (Official Gazette), 36/99.

Keywords of the Systematic Thesaurus:

– Institutions – Languages – Official language(s).
– Institutions – Languages – Minority language(s).
– Institutions – Judicial bodies – Organisation – Languages.
– Fundamental Rights – Civil and political rights – Procedural safeguards and fair trial – Languages.
– Fundamental Rights – Civil and political rights – Linguistic freedom.
– Fundamental Rights – Civil and political rights – Protection of minorities and persons belonging to minorities.

Headnotes:
While undertaking official activities, e.g. delivery of notification of trial dates, the Court cannot use a language and alphabet other than the official one. The use of the official language and alphabet in official court activities does not depend on the number of inhabitants belonging to a national minority resident in a certain region.

Summary:
The provision at issue of the Law on Civil Procedure prescribed that the notification of trial dates in local self-government units in which persons belonging to a national minority are the majority or a substantial part of the total population should be written in the language and alphabet of the national minority. This provision was a derogation from the general stipulation according to which the notification of trial dates is written in the Macedonian language and its Cyrillic alphabet.

According to [ENG-MKD-A-7] Article 7.1 of the Constitution, the Macedonian language, written using its Cyrillic alphabet, is the official language in the Republic of Macedonia. Pursuant to [ENG-MKD-A-7] Articles 7.2 and [ENG-MKD-A-7] 7.3 of the Constitution, in the units of local self-government where the majority of the inhabitants belong to a national minority, in addition to the Macedonian language and Cyrillic alphabet, the language and alphabet of the national minority are also in official use, in a manner determined by law, and the same applies to local self-government units where there is a considerable number of inhabitants belonging to a national minority.

Bearing in mind the meaning of [ENG-MKD-A-7] Article 7.1 of the Constitution, the Court considered that, while undertaking official activities regarding civil procedure, the courts cannot use languages and alphabets which are not official, but can use only the Macedonian language and its Cyrillic alphabet. The use of the official language and alphabet in official court activities does not depend on the number of inhabitants belonging to a national minority resident in a certain region.

MKD-1999-2-006
a) Republic of Macedonia / b) Constitutional Court / / c) 19/05/1999 / d) U.br.61/99 .

Keywords of the Systematic Thesaurus:

– General Principles – Proportionality.

– General Principles – General interest.
– General Principles – Market economy.
– Institutions – Judicial bodies – Legal assistance and representation of parties – The Bar – Status of members of the Bar.
– Fundamental Rights – Equality – Scope of application – Public burdens.
– Fundamental Rights – Civil and political rights – Rights in respect of taxation.

Headnotes:
The legislature is empowered to determine fiscal policy, including the terms according to which the taxation is enforced and the means for its enforcement as well as the possibilities for tax incentives. Preferential tax treatment of lawyers (from the sales tax point of view) aims to enhance and encourage the bar, as an autonomous and independent public service, since legal assistance is of primary significance for the furtherance of the public interest in the protection of the rights and legally founded interests of others.

Summary:
According to the petitioner, exemption of lawyers from sales tax on fees charged for services rendered is contrary to [ENG-MKD-A-9] Articles 9, [ENG-MKD-A-33] 33 and [ENG-MKD-A-55] 55 of the Constitution. Such a provision privileges lawyers and puts them in a favourable position in comparison with other market players, thus violating the constitutional guarantee of an equal legal position for all market entities.[ENG-MKD-A-53] Article 53 of the Constitution specifies the legal position and nature of the bar, as an autonomous and independent public service, which provides legal assistance and carries out public duties in accordance with the law. It is a public service which ensures professional legal assistance for the application and enforcement of the legal order. Since it acts in the public interest, its functioning is socially necessary and useful. In exercising their profession, lawyers indirectly contribute to the proper application of the law and the accomplishment and protection of rights and legally founded interests of legal entities and individuals.

According to [ENG-MKD-A-33] Article 33 of the Constitution, everyone is obliged to pay tax and other public contributions as well as to share in the burden of public expenditure in a manner determined by law. The Law on Sales Tax on Products and Services itself defines the sales tax payer as “the legal and natural person who performs the service for which tax payment is prescribed according to this law”. In the Court’s opinion, the statutory exemption of certain persons (lawyers) from the obligation to pay tax for their services is not inconsistent with the Constitution, because such power is vested in the legislature by the Constitution itself.

A free market and freedom of enterprise are among the fundamental values of the constitutional order. Furthermore, the Republic ensures an equal legal position to all parties in the market, meaning that it is obliged to take certain measures (preventive and repressive) in order to prevent monopolies and monopolistic conduct in the market. Thus it encourages competition and ensures equal possibilities for all to perform any activity in the market. The exemption of lawyers from the obligation to pay sales tax for services rendered applies equally to all of them, providing them all with an equal possibility of gaining from this advantage. The principle of equality does not prevent the legislature from introducing different treatment in distributing tax incentives, provided that different tax treatment is based on criteria which are objective in relation to the goals that the legislature aims to fulfil, including the public interest. Therefore, the preferential tax treatment of lawyers can be treated as an effort that aims to strengthen and encourage the bar, as an autonomous and independent public service, since legal assistance is of primary importance for the furtherance of the public interest in the protection of the rights and interests of all persons.

MKD-1999-2-005
a) Republic of Macedonia / b) Constitutional Court / / c) 12/05/1999 / d) U.br.217/98 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 33/99.
Keywords of the Systematic Thesaurus:

– General Principles – Separation of powers.
– General Principles – Rule of law.
– General Principles – Weighing of interests.
– General Principles – Equity.
– Institutions – Executive bodies – Powers.
– Fundamental Rights – Civil and political rights – Inviolability of the home.
– Fundamental Rights – Civil and political rights – Right to property.

Headnotes:
Where an apartment is occupied illicitly without a lease agreement having been concluded, the owner is entitled to the return of the apartment into his/her possession with preliminary assistance by the appropriate authority under certain conditions. Statutory determination of this issue requires observance of the constitutional principles of the separation of state powers and the rule of law.

Summary:
Judging upon the petition challenging the Law on Housing, the Court found that Article 11 of the Law was not in compliance with the constitutional principles of the rule of law and the separation of state powers. According to the disputed provision, in cases of the illicit occupation of an apartment by a person without a lease agreement having been concluded, the owner is entitled to the return of the apartment into his/her possession with preliminary assistance by the appropriate authority, without an administrative or court procedure having been commenced.[ENG-MKD-A-26] Article 26 of the Constitution guarantees the inviolability of the home, and also provides for certain conditions when this right may be restricted: in cases necessary for detention or the prevention of criminal offences or the protection of people’s health. Such restrictions may, however, only be imposed on the basis of a court decision. Bearing in mind the significance of the home as the primary condition for freedom of living and work, it follows that the Constitution guarantees maximal, i.e. almost absolute inviolability of the home. The object of constitutional protection is only an owned or otherwise legally acquired home and not an apartment which someone has entered illegally, without a concluded agreement. Therefore, the constitutional protection applies only to cases where the home is acquired legally. The occupation of an apartment without the agreement of the owner constitutes a violation of the rights of others and repossession is undertaken in order for some lawful right to be protected (self-protection). A preliminary call for assistance by the appropriate authority for repossession by the owner or beneficiary means the protection of one person’s own right against another person’s lack of right. The principle of the rule of law means not only observance of the legal order, but also respect of the rights of others. Justice and fairness, as constituent elements of the rule of law, impose an obligation for all to be restrained from violating the rights of others.

However, the Court found that although the disputed provision is based on the notion of self-protection in the civil sense, which is regulated by the Law on Basic Proprietary-Legal Relationships and the Law on contracts, it does not provide for conditions and terms for its enforcement. Therefore, it found the provision to be in conflict with the constitutional principle of the rule of law.

The power of the relevant authority to provide assistance to the owner while he/she is in the process of repossessing the apartment, without any decision being adopted by a competent body, calls into question the fundamental constitutional value of the division of state powers into legislative, executive and judicial branches.

MKD-1999-2-004
a) Republic of Macedonia / b) Constitutional Court / / c) 05/05/1999 / d) U.br.8/99

Keywords of the Systematic Thesaurus:

– General Principles – Separation of powers.
– Institutions – Executive bodies – Powers.
– Institutions – Public finances.
– Fundamental Rights – Civil and political rights – Procedural safeguards and fair trial – Scope – Non-litigious administrative procedure.
– Fundamental Rights – Civil and political rights – Procedural safeguards and fair trial – Access to courts.
– Fundamental Rights – Civil and political rights – Procedural safeguards and fair trial – Presumption of innocence.

Headnotes:
A mandatory penalty is a preliminary action undertaken prior to the submission of a request for the initiation of proceedings for an administrative offence and it cannot be treated as an authorisation given to a non-judicial body to initiate such proceedings. Statutory authorisation given to certain persons (customs officials) to impose a mandatory penalty does not violate the constitutional principle of the separation of state powers.

Summary:
In considering a petition challenging certain provisions of the Customs Law, the Court found no grounds to commence proceedings for the assessment of their constitutionality. According to the Law, the non-fulfilment of statutorily prescribed actions or their execution in a manner contrary to the Law constitutes a customs violation, which is either an administrative or criminal offence. The disputed Article 193 of the Law gives the customs body authority either to collect a mandatory fine for the infringement committed or to initiate proceedings against the alleged offender. Article 203 states that customs officials can offer the offender the opportunity to pay the mandatory fine. If the offender refuses, the customs official will refer the file to the competent court.

The Constitution prescribes that the bodies of state administration perform the duties within their sphere of competence autonomously and on the basis and within the framework of the Constitution and laws, being accountable for their work to the Government. Furthermore, according to [ENG-MKD-A-13] Article 13 of the Constitution, a person indicted for an offence shall be considered innocent until their guilt is established by a valid court verdict. Therefore, the Court concluded that a person’s guilt (whether of an administrative or criminal offence) must be determined by a court decision, which means that courts, as autonomous and independent bodies, should decide for all offences.

The Court considered that a mandatory penalty is a kind of state intervention imposed in order to eliminate a certain category of violations of the law that are of minor significance. The imposition of a fine would accomplish its purpose if it were enforced at the time when the infringement was committed. The collection of a mandatory fine amounts to the direct application of the law, if the offender has accepted the payment. If he/she does not pay the penalty voluntarily, it cannot be coercively enforced, but a request would be submitted for the commencement of proceedings against the offender for an administrative offence. The mandatory punishment is a preliminary action undertaken prior to the submission of a request for such proceedings and it cannot be treated as an authorisation given to a non-judicial body to initiate proceedings for an administrative offence. Therefore, the Court stated that imposition of a mandatory penalty for certain administrative offences, where the Law has determined the size of the fine and the official body competent to collect it, does not violate the constitutional principle of the division of state powers into legislative, executive and judicial branches.

MKD-1999-1-003
a) Republic of Macedonia / b) Constitutional Court / / c) 10/03/1999 / d) U.br.120/98 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 18/99).

Keywords of the Systematic Thesaurus:

– General Principles – Weighing of interests.
– General Principles – General interest.
– Institutions – Public finances – State assets – Privatisation.
– Fundamental Rights – Equality – Criteria of distinction.
– Fundamental Rights – Civil and political rights – Right to family life – Succession.
– Fundamental Rights – Civil and political rights – Non-retrospective effect of law.
– Fundamental Rights – Civil and political rights – Right to property – Privatisation.
– Fundamental Rights – Economic, social and cultural rights – Commercial and industrial freedom.

Headnotes:
The new constitutional order and the society that arises from it are based and built upon the principle of private ownership. The right to ownership of property is one of the essential economic human rights. Denationalisation is a process of recovery of ownership of property or allowance of compensation for property of which a person was deprived in the interests of the State. The legislature considers the property within the framework of social property transformation, i.e. privatisation, thus protecting the rights of former owners, directly or indirectly. In passing the Law on Denationalisation, the State has fulfilled its constitutional obligation to endorse the right of ownership of former owners.

Summary:
The Association for the Protection of the Interests of Owners of Confiscated Property lodged a petition with the Court challenging the Law on Denationalisation as being in conflict with the constitutional provisions that lay down the principle of equality, the right to ownership and the prohibition of retroactive effect. The Court has rejected several statutory provisions as discordant with the constitutional principle of legal protection of property and equality of citizens before the Constitution and laws.

In particular, the law states that the subject of denationalisation would be property confiscated after 2 August 1944 pursuant to several (but not all) so-called “compulsory regulations”. Such a selective definition of “compulsory regulations” on the basis of which the confiscation occurred, the Court found, could put citizens in unequal positions by classifying them into two groups: those who get the property back, and those who do not.

As regards the statutory provision according to which the property given by the State in concession and property used by public health institutions and institutions for social and child care and public education (hospitals, ambulances and schools) will not be returned, but compensation will be given in lieu, the Court found that it does not include the requirement of a prior determination of the public interest; or that it defines the public interest widely, thus exceeding its constitutionally established dimensions. The public interest is closely connected with the general interest and it assumes a clear determination of the corpus of objects over which such a relation could be constituted, as well as the grounds on which a matter may be considered to affect the public interest.

The stipulation according to which a request for denationalisation can be submitted not only by the former owner, but also by persons who on the day of entry into force of the law are the inheritors of the former owner, excludes those inheritors who acquire such a status after the law has entered into force, which violates the right of inheritance.

According to Article 22.2 of the Law, when the subject of denationalisation is agricultural land, forests, forest land, pastures or fallow fields, the former owner acquires joint ownership over the land with the State. This stipulation means the creation of a category of joint ownership without obtaining the consent of the owner and without prior determination of the public interest, which could restrict the rights derived from the ownership.

The law also introduces a category of persons holding the ius utendi (right of use) in a residential building or owned flat as a new right including obligation elements but not civil ones. A precondition for the existence of the right of use or right of lease is the existence of the right of ownership. By the newly created right of use, as a remnant of the rights of tenants, a right arises that damages the right of ownership and that protects the interests of persons who used that property on different bases.

According to Article 28 of the Law, when the transformation of a socially owned enterprise has not been completed, real estate or other property for which a request for denationalisation has been lodged will be returned to the former owner if this does not infringe the structural, technical and technological integrity of the enterprise. The Court found that this definition implicitly establishes this integrity as a public interest that may entail the deprivation or restriction of ownership rights.

A refusal to return confiscated property that belongs to a bankrupt company or property that was deemed to have belonged to a company which had gone bankrupt, although the company did not in fact own the property and could not enter into a bankrupt estate, would restrict ownership rights and introduce a retroactive effect, disadvantaging citizens.

The Law prescribes that bonds are calculated in German marks, on which interest is not calculated. Furthermore, if the payment is in class “B” bonds, the compensation will be calculated as 60% of the specified amount, not exceeding the amount of 100.000 German marks in denar counter-value. Taking into consideration that interest is an accessory right in the obligations and as a capital price it is a financial instrument for fulfilment of the principal, i.e. ownership relation, the Court found that it cannot be excluded from this amount. Limitation of the compensation in percentage terms and to a maximum amount puts citizens interested in the return of confiscated property in a disadvantaged position compared with those to whom the compensation has been paid or would be paid without limitations.

MKD-1999-1-002
a) Republic of Macedonia / b) Constitutional Court / / c) 24/02/1999 / d) U.br.180/98 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 15/99).

Keywords of the Systematic Thesaurus:

– Sources of Constitutional Law – Categories – Written rules – International instruments – European Charter of Local Self-Government of 1985.
– General Principles – Legality.
– Institutions – Federalism, regionalism and local self-government – Municipalities.
– Institutions – Federalism, regionalism and local self-government – Municipalities.
– Institutions – Federalism, regionalism and local self-government – Basic principles – Autonomy.
– Institutions – Federalism, regionalism and local self-government – Budgetary and financial aspects.

– Institutions – Federalism, regionalism and local self-government – Distribution of powers – Supervision.
– Institutions – Federalism, regionalism and local self-government – Distribution of powers – Supervision.
– Institutions – Public finances – Budget.
– Institutions – Public finances – State assets.

Headnotes:
The statutory provision according to which local self-government units are obliged to submit an estimate of their budgets to the appropriate Ministry, the comments and suggestions and suggestions of which they are obliged to take into consideration, and, where this obligation encompasses not only the funds granted by the State but also to the genuine assets of the municipality, jeopardises the financial independence of the local self-government entities.

Summary:
Pursuant to the Law on Budgets, estimates of local self-government units’ budgets, before the budgets are passed, must be sent to the Ministry of Finance. The competent bodies of the local self-government entities are then obliged to take the Ministry’s comments and suggestions into consideration.

Local self-government is one of the fundamental values of the constitutional system and it is separate from the authority of the State, which is exercised by legislative, judicial and executive bodies ( [ENG-MKD-A-8] Articles 8.1.4 and [ENG-MKD-A-9] 9 of the Constitution). Local self-government entities are independent in the performance of the competencies laid down by the Constitution and by law and this independence cannot be restricted by government acts, aside from the exception according to which their independence can be restricted when the legality of their work is called into question. Furthermore, local self-government entities autonomously dispose of their own assets determined by law, as well as of the additional funds given by the Republic. The latter may supervise not only the legality, but also the usefulness and appropriateness of the spending, in cases when the State grants local self-government entities the right to perform activities that are within the competencies of State bodies.

According to the Law on Local Self-Government Entities, municipalities pass their budgets autonomously. Local self-government entities are financed by 1) their own sources of funds laid down by law, 2) additional funds from the State budget, and 3) loans derived from the State’s budget, government funds for matters delegated to local self-government entities and other funds provided by other interested legal and natural persons. Also, for the purposes of financing, local self-government units can issue bonds and can acquire profits from the performance of economic or other profitable activities, whereby profits and liabilities are determined by the budget, of which the preparation, adoption and enforcement is regulated by the local self-government entity’s by-laws.

The Government and competent Ministries may supervise the whole operation of the local self-government unit, and if the Government notices any illegalities that could cause unrecoverable damages, it can cease to enforce the general act.

Local self-government entities’ assets are defined identically in the European Charter of Local Self-Government, according to which local authorities have 1) their own sources of finance, of which they dispose independently within their competencies and in accordance with the economic policy of the State, and they are also granted the right 2) to receive transferred funds (from different entities, including the State). These entities are not supposed to specify the purpose of the funds as this would jeopardise the discretionary right of the local authorities to enforce policy within the framework of their competencies.

According to the reasons mentioned above, the Court found that this provision puts into question the financial independence of local self-government units, since there remains an obligation on the municipality to submit an estimate of its budget to the Republic, in cases when the latter grants funds for certain purposes.

MKD-1999-1-001
a) Republic of Macedonia / b) Constitutional Court / /c) 20/01/1999 / d) U.br.161/98 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 5/99).

Keywords of the Systematic Thesaurus:

– General Principles – General interest.
– General Principles – Market economy.
– Fundamental Rights – Equality – Criteria of distinction.

Headnotes:
Communal activity is one of public interest, and the conditions and means of its performance are laid down by law. Public undertakings that perform communal activities cannot perform other activities, because such conduct would constitute unfair competition, putting the public undertakings in a privileged position, which is contrary to the constitutional guarantee of an equal legal position for all market entities.

Summary:
Pursuant to a petition lodged by a natural person, the Court ruled that the provision of the Law on Communal Activities that empowered public undertakings registered for communal activities to satisfy certain public needs such as water supply, garbage collection and road maintenance, to perform other activities having obtained the prior permission of the founder, was unconstitutional.

The Court found that this provision was not in compliance with the constitutional principle of an equal legal position for all market entities, whereby the right to take certain measures against positions of monopoly and monopolistic conduct in the market place is vested in the Republic.

Specifically, public undertakings are established in order to perform economic activities of public interest, i.e. activities that are an essential condition for the life and work of people and the work of legal entities and government authorities.

The Law on Communal Activities regulates the basic conditions and ways in which communal activities are performed, their financing and other issues relevant for communal activities. Meanwhile, the public undertaking’s founder establishes the conditions and means of spending and otherwise using the profits derived from the operation of the undertaking. (It is unclear whether “profits” refers to the profits derived from performing the main communal activity or those obtained as a consequence of the performance of the other activity).

The statutory provision that empowers public communal undertakings, besides performing the main communal activity of public interest, to engage in other activities (that are neither communal nor other activities of public interest), creates a possibility for the public undertaking to behave unfairly in relations with other market entities that perform similar activities (for example by exposing the market to the risk of dumping prices). Public communal undertakings cannot perform other activities also because they are established in order to perform economic activities of public interest, and these are the subject of a special legal regime. Thus, the performance of any other activity that is regulated according to a different legal regime would not be in compliance with the constitutional principle of an equal legal position for all market entities.

MKD-1998-3-009
a) Republic of Macedonia / b) Constitutional Court / / c) 24/12/1998 / d) U.br.223/97 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 64/98).

Keywords of the Systematic Thesaurus:

– Sources of Constitutional Law – Categories – Written rules – International instruments.
– General Principles – Relations between the State and bodies of a religious or ideological nature.
– Fundamental Rights – Equality – Criteria of distinction – Religion.
– Fundamental Rights – Civil and political rights – Right to a nationality.
– Fundamental Rights – Civil and political rights – Freedom of conscience.
– Fundamental Rights – Civil and political rights – Freedom of worship.
– Fundamental Rights – Civil and political rights – Freedom of association.

Headnotes:
The constitutional guarantee of the freedom of religious confession and its free expression implies that it is possible for religious activities to be undertaken outside of registered religious communities, i.e. religious groups.

The requirement of a high number of founding members of religious groups and the inclusion of numerous details concerning founders entails the restriction of the freedom of religious confession and the freedom of citizens to form associations in order to realise the protection of certain rights and convictions.

Religious communities and groups are separate from the state and equal before the law.

Summary:
Judging the petition lodged by several religious communities, the Court abolished certain provisions of the Law on religious communities and religious groups as they were in conflict with some constitutional guarantees of the freedom of religious confession.

According to the statute in question, only registered religious communities or groups can conduct religious activities, which should be in conformity with the Constitution, statutes and other regulations. The law prescribes the minimum number of founders of the religious group (50 mature residents of the Republic of Macedonia with a place of permanent residence therein) and imposes compulsory application for registration. The application must include the name and personal details of the founding members, the seat and scope of activities of religious community or group, an indication of the place where the activities are conducted and information about persons in charge of the work of the group and its representation. This information is included in the register, which is administered by the administrative body competent in matters of religious communities and groups, which passes specific regulations concerning the administration and contents of the register and provides an opinion on the construction or acquisition of building for the purposes of religious communities or groups.

According to [ENG-MKD-A-9] Article 9 of the Constitution all citizens are equal in their freedoms and rights regardless of their affiliations and all are equal before the Constitution and laws.

The freedom of religious confession and the right of free and public expression of religious faith, individually or with others are guaranteed.

Religious communities and groups are equal before the law and are free to establish religious schools and other social and charitable institutions, by way of a procedure regulated by law.

Citizens are free to establish associations of citizens, to join them or resign from them, provided their activities are not directed to violent destruction of the constitutional order, or at encouragement of or incitement to military aggression or ethnic, racial or religious hatred or intolerance.

Similar standards are applied within [ENG-UNO-A-18] Articles 18 and [ENG-UNO-A-29] 29.2 of the Universal Declaration of Human Rights.

The freedom of religious confession and free expression of one’s faith is a confirmation of the constitutionally determined equality of citizens regardless of their religious convictions. The separation of the state from the church is introduced in order to prevent state interference and intervention in church and religious matters, on the one hand, and to prevent the church from interference and engagement in political life and governmental activities on the other. Therefore, statutory authorisations concerning the administrative body in this domain restrict the freedom of religious confession and enable the violation of the constitutionally determined relationship between the state and church. This exceeds the constitutionally and statutory competencies of administrative bodies.

No church is privileged in any way.

The statutory provision that connects the exercise of religious matters with the registration of religious communities or groups restricts and enters into individuals’ personal and intimate feelings and religious convictions. This violates the constitutional guarantee of freedom of religious confession, thus enabling the punishment of persons when religious activities are conducted outside of a registered religious community or group.

This freedom is restricted by introducing a minimum number of founders and requiring the inclusion of numerous details in the application for registration, which is not the case in other associations of citizens. These restrictions are in conflict with the freedom of citizens to form associations in order to accomplish and protect certain rights and convictions, including religious ones.

MKD-1998-3-008
a) Republic of Macedonia/ b) Constitutional Court / / c) 25/11/1998 / d) U.br.36/98 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 18/99).

Keywords of the Systematic Thesaurus:

– Sources of Constitutional Law – Categories – Written rules – International instruments – European Convention on Human Rights of 1950.
– General Principles – Democracy.
– Institutions – Languages – Official language(s).
– Fundamental Rights – Equality – Criteria of distinction – National or ethnic origin.
– Fundamental Rights – Civil and political rights – Procedural safeguards and fair trial – Languages.
– Fundamental Rights – Civil and political rights – Protection of minorities and persons belonging to minorities.

Headnotes:
The right of residents of the Republic of Macedonia belonging to national minorities to use the language and alphabet of the nationality that they belong to in communication with a court, whereby the court ensures free translation, is based on the principle of a fair trial and does not put in question the official use of the Macedonian language.

Official court activities (delivery of summonses and other documents) cannot be undertaken in a language other than the official one.

Summary:
The applicant argued that besides the Macedonian language, the Law on criminal procedure introduced the languages of national minorities into official use within criminal proceedings, which is not in compliance with [ENG-MKD-A-7] Articles 7.2 and [ENG-MKD-A-7] 7.3 of the Constitution, according to which the languages of the national minorities can be officially used only in local self-government units (under certain conditions) and not within State bodies such as the courts.

Pursuant to the disputed provisions, residents of the Republic belonging to national minorities are granted the right to use the language and alphabet of the nationality that they belong to. They can lodge petitions with courts using the language and alphabet of the nationality that they belong to. This right is also granted to other persons who do not understand and speak the Macedonian language and its alphabet. Furthermore, these provisions introduce an obligation for the court to deliver the summons and other documents to these individuals not only in the Macedonian language, but also in the language and alphabet of the nationality that they belong to.

One of the minimum rights of the accused in criminal proceedings is the right of free translation in cases when he/she does not understand or speak the language of the court ([ENG-ECH-0-6] Article 6.3 ECHR). The principle of a fair trial is an essential and legitimate condition required for the protection of human rights. The use of a language in criminal proceedings should be considered not only in relation to the question of its official use, but also within the framework of the position in the proceedings, not only of the accused, but also of the other parties. Therefore, attaching the right to use one’s own language and the right of free translation to a person’s citizenship and national affiliation, and not to the ignorance of the language used by the court, constitutes a higher standard in the protection of human rights in criminal procedures. This enables individuals to use the language which they naturally understand and speak more fluently.

The extension of this right to other parties in proceedings (including foreigners) also contributes to the principle of a fair trial and it is a higher standard in the protection of all parties to proceedings, not only of the accused.

Imposing an obligation on the court to deliver the summons and other documents in the language of the nationality that the party belongs to (as well as in Macedonian) does not constitute a right of the individual as part of the duty to ensure a fair criminal trial, but rather introduces duties for the court to use a language other than the official one. This is not in conformity with [ENG-MKD-A-7] Article 7.1 of the Constitution, according to which the official language of the Republic is the Macedonian language and its Cyrillic alphabet.

MKD-1998-3-007
a) Republic of Macedonia/ b) Constitutional Court / / c) 18/11/1998 / d) U.br.141/97, U.br.146/97 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 59/98).

Keywords of the Systematic Thesaurus:

– General Principles – Sovereignty.
– Institutions – State Symbols.
– Institutions – State Symbols – Flag.
– Institutions – Head of State – Term of office – Incapacity.
– Fundamental Rights – Equality – Criteria of distinction – National or ethnic origin.
– Fundamental Rights – Civil and political rights – Protection of minorities and persons belonging to minorities.

Headnotes:
The use of the flag of another State by national minorities resident in Macedonia is not one of the constitutionally defined ways through which such persons have the right to express, foster and develop their identity and national characteristics.

The State flag belongs to all citizens of the Republic of Macedonia, including those who belong to national minorities.

The official journey of the President of the Republic on State interests does not mean he/she is unable to fulfil his/her functions, which would empower the President of the Assembly to replace him/her.

Summary:

In its judgment on a petition lodged by several political parties, the Court annulled not only the Law on the Use of Flags, by which inhabitants belonging to a national minority in the Republic of Macedonia express their identity and national characteristics, but also the decree for its promulgation.

According to the disputed provisions, the members of national minorities enjoy the right to use their national flag in order to express, foster and develop their identity and national characteristics. The national flag is the flag that they choose or use as their own. The law states that the national flag cannot be used in front of or within buildings of bodies of local self-government, except in those local self-government units where the members of the nationality in question are the majority of the population, and only during State holidays. Furthermore, the law stipulates appropriate sanctions for legal entities and persons in charge of them who use the flag by which members of a national minority express their identity and national characteristics contrary to this law.

Taking into consideration the preamble and content of the Constitution it is apparent that one of the fundamental values of the constitutional order is the fundamental freedoms and rights of man and the citizen. Taking into account the sovereignty of the State (civil sovereignty), not the sovereignty of the Macedonian people, it is not possible for the members of national minorities to use their national flag, because they are also citizens and residents of the Republic of Macedonia, which means that the State flag is also their flag.

The Constitution guarantees the ethnic, cultural, linguistic and religious identity of national minorities, as well as their right to establish cultural and artistic institutions and scholarly and other associations aiming to express and develop their identity.

Relating the number of members of a national minority in local self-government units to the right to raise their national flag is not in conformity with the Constitution, because the number of members itself is not relevant for the use of flag. The essential question is whether such a flag can be used as national symbol.

On the other hand, these provisions violate the principle of equality, because by granting such a right only to the members of the national minorities who are in fact in the majority in certain local self-government units, such persons are put in a more favorable position than those inhabitants belonging to national minorities who are considerable in number but not sufficient.

In addition there is a lack of an international standard within the corpus of rights of national minorities that enables them to express their identity and national characteristics by using their own national flag.

The right of inhabitants belonging to national minorities to use their flag in private life during cultural, sporting and other public activities is not clearly defined and provides the possibility under this term for there to be organised showings of the flags that would be contrary to the core of the Constitution.

Pursuant to [ENG-MKD-A-75] Article 75.1 of the Constitution, laws are promulgated by a decree signed by the President of the Republic and the President of the Assembly.[ENG-MKD-A-82] Article 82 of the Constitution prescribes the cases (death, resignation, permanent inability to perform duties, termination of office in accordance with constitutional provisions, inability of the President of the Republic to perform his/her functions) when the President of the Assembly replaces the President of the Republic, i.e. performs the office of the President of the Republic. The departure of the President of the Republic on an official journey as chief of the State does not mean he/she is unable to perform his/her office. Therefore it does not authorise the President of the Assembly to replace him/her.

Supplementary information:
Dissenting opinions were handed down in this case.

MKD-1998-2-006
a) Republic of Macedonia / b) Constitutional Court / / c) 08/07/1998 / d) U.br. 53/98.

Keywords of the Systematic Thesaurus:

– General Principles – Weighing of interests.
– Fundamental Rights – General questions – Limits and restrictions.
– Fundamental Rights – Economic, social and cultural rights – Right to strike.

Headnotes:
The right to strike is guaranteed. The legislator is allowed to prescribe certain restrictions for its exercise if this is necessary for economic and other activities in the country, as well as for enforcing international commitments.

Summary:
The Constitution guarantees the right to strike and envisages the possibility of its restriction in the armed forces, the police and administrative bodies. The applicant, the Independent Union of railway traffic staff, considered that public undertakings, including the «Macedonian Railways», cannot be included in the aforementioned sectors.

The law on public undertakings stipulates the right to strike in compliance with the Constitution, provided that the strike board and participating workers are obliged to organise and conduct it in a way that ensures physical safety for employees and the protection of equipment sustains a necessary operating level and enforces international agreements. Non-fulfilment of these obligations represents a serious violation of working obligations.

Although the right to strike is guaranteed, it cannot exist absolutely, without restrictions necessary for the protection of the state interest and human freedoms and rights. Therefore, general conditions for its exercise have to be circumscribed in order to prevent possible abuse to the extent that can cause negative, damaging consequences for the entire community and particular entities.

Taking into account the character and significance of public utility activities, restrictions stated in the challenged acts are in line with the need to create a legal framework for the conditions under which the workers in these undertakings can enjoy the constitutionally guaranteed right to strike.

MKD-1998-2-005
a) Republic of Macedonia / b) Constitutional Court / / c) 01/06/1998 / d) U.br. 62/98 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 34/98.

Keywords of the Systematic Thesaurus:

– Constitutional Justice – Effects – Determination of effects by the court.
– General Principles – Legality.
– Institutions – Federalism, regionalism and local self-government – Municipalities.
– Institutions – Federalism, regionalism and local self-government – Municipalities.
– Institutions – Federalism, regionalism and local self-government – Basic principles – Autonomy.
– Institutions – Federalism, regionalism and local self-government – Distribution of powers – Supervision.
– Institutions – Federalism, regionalism and local self-government – Distribution of powers – Supervision.
– Institutions – Public finances – Budget.

Headnotes:
Although a municipality is authorised to pass its budget independently, it is obliged to consider proposals and comments given by the Ministry of Finance. It cannot stipulate either a wage provision for the Chairman of the Council, or a fixed monthly remuneration for the Mayor.
Summary:
The Government lodged a petition with the Constitutional Court challenging the legality of the procedure followed by a municipality in passing its budget and a decision on wages and other remuneration for elected and appointed persons in the local bodies.

Although local self-government units pass their budgets and balance sheets independently (Article 17.1.2 of the Law on local self-government), the draft-budget has to be given to the Ministry of Finance for preliminary review and additional consent (Article 20 of the Law on Budgets). Furthermore, the municipality is obliged to take into consideration its comments and proposals. Despite all this, the municipality passed the budget without the necessary remarks and compulsory consent given by the Ministry of Finance.

The Council also passed a decision determining that its Chairman was entitled to receive a wage and that the Mayor could enjoy remuneration at a fixed monthly rate. According to Article 37 of the Law on local self- government «Council members are entitled to receive remuneration covering travel and daily expenses in lawfully determined frames, as well as for the costs caused by enforcing the tasks delegated by the Council itself». There is no legal possibility for the municipality either to prescribe a wage for the Chairman of the Council or to determine its size. Since the Mayor performs a professional function, he/she receives a wage in lawfully determined frames, but the law does not prescribe the possibility of enjoying remuneration at a fixed monthly rate.

Since the municipality did not follow legal provisions regarding the procedure for passing its budget and passed a decision that violates a specific law, the Constitutional Court annulled these acts.
Supplementary information:
As this practice existed within several municipalities, this decision was used as a warning aimed at forcing them to adjust their acts (budgets) in line with the Governmental proposals. A fixed term has been given to them to accomplish this objective. If they do not comply, their budgets will be suspended.
Languages:
Macedonian.
MKD-1998-2-004
a) Republic of Macedonia / b) Constitutional Court / / c) 20/05/1998 / d) U.br. 49/98 / / e) CODICES (Macedonian).

Keywords of the Systematic Thesaurus:

– Sources of Constitutional Law – Categories – Written rules – International instruments.
– Sources of Constitutional Law – Categories – Written rules – International instruments – International Covenant on Civil and Political Rights of 1966.
– Institutions – Languages – Official language(s).
– Institutions – Languages – Minority language(s).
– Fundamental Rights – Civil and political rights – Freedom of expression.
– Fundamental Rights – Civil and political rights – Rights in respect of the audiovisual media and other means of mass communication.
– Fundamental Rights – Civil and political rights – Linguistic freedom.
– Fundamental Rights – Civil and political rights – Protection of minorities and persons belonging to minorities.

Headnotes:
Radio broadcasting by a State enterprise in the language of minorities does not bring into question the official use of the Macedonian language. It is entirely in line with the constitutional guarantees of the rights of persons belonging to minorities freely to express, enjoy and develop their identity and national characteristics. It reflects the State’s obligation to create normative conditions in order to accomplish this goal in the cultural sphere.

Summary:
The VMRO-Democratic Party for Macedonian National Union lodged a petition with the Constitutional Court challenging the Law on radio broadcasting and claiming that it enables minority languages to become official ones, in addition to the Macedonian language.

The Law itself stipulates that radio broadcasting organisations perform their activity through programmes and specifies the general content of these programmes. Programmes which are broadcast with the aim of destroying the constitutional order through violence, calling for military aggression or inciting national, racial or religious hatred and intolerance are not allowed.

Basic human freedoms and rights recognised in international law and set down in the Constitution constitute one of the fundamental values of the constitutional order. In order to guarantee such rights and national equality, the State has to protect the ethnic, cultural, linguistic and religious identity of persons belonging to minorities. This cannot be made dependent on the national minority being the majority in a certain area (local level). Radio broadcasting using the language of minorities does not amount to the creation and association of a multi-language situation in the Republic. The right of a public radio enterprise to broadcast its programmes in the language of minorities in addition to the Macedonian language cannot be applied in the context of the official use of language, only in connection with the rights of minorities and the obligation of the State to guarantee their protection.

Therefore, this legal provision is not incompatible with the constitution.

Cross-references:
In its decision, the Court referred to the international documents dealing with cultural rights, such as: [ENG-UNO-A-27] Article 27.1 of the Universal Declaration of Human Rights; Article 27 of the International Pact on civil and political rights); OSCE Documents; Article 4.2 of the Framework Convention for the Protection of national minorities.

MKD-1998-1-003
a) Republic of Macedonia / b) Constitutional Court / / c) 08/04/1998 / d) U.br. 50/98 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 20/98 .

Keywords of the Systematic Thesaurus:

– Constitutional Justice – Effects – Influence on State organs.
– Sources of Constitutional Law – Categories – Written rules.
– General Principles – Territorial principles – Indivisibility of the territory.
– General Principles – Weighing of interests.
– Institutions – State Symbols.
– Institutions – State Symbols – Flag.
– Institutions – State Symbols – National anthem.
– Fundamental Rights – General questions – Limits and restrictions.
– Fundamental Rights – Civil and political rights – Freedom of conscience.
– Fundamental Rights – Civil and political rights – Freedom of expression.
– Fundamental Rights – Civil and political rights – Linguistic freedom.
– Fundamental Rights – Civil and political rights – Protection of minorities and persons belonging to minorities.

Headnotes:
Freedom of thought and public expression of thought are subjective rights inalienably connected with human personality. The guarantee of these freedoms means that everyone can develop their own opinions in all spheres of life and publicly express them free from external or State intervention. Since the Constitution contains neither specific nor general legal reservations restricting the exercise of the freedom of thought and public expression of thought, these limitations are to be found in the Constitution and its provisions as a whole, taking into consideration as well the international instruments ratified in conformity with the Constitution.

Despite the high level of guarantees provided, the freedom of thought and public expression of thought provided for in the Constitution of the Republic of Macedonia are not absolute and cannot exist unrestrictedly. The legal framework has to limit the exercise of individual freedoms to some extent for the protection of others and for the security of society as a whole.

Summary:
Rufi Osmani, Major of the Municipality of Gostivar, lodged a petition with the Constitutional Court for the protection of his personal convictions, conscience, thought and public expression of thought, the freedom of which is guaranteed in [ENG-MKD-A-16] Article 16 of the Constitution. As an act by which this freedom had been violated, he indicated a final judgment of the Municipal Court of Gostivar from 17 September 1997, which found him guilty of certain criminal offences, notably «Inciting national, racial and religious hatred, discord and intolerance», «Organising resistance» and «Non-enforcement of a court’s decision», and sentenced him to a single penalty of imprisonment for 13 years and 8 months, a sentence which the Court of Appeal reduced to 7 years.

By the aforementioned decision, the applicant was convicted for having organised and agreed to a protest meeting «To protect the official use of the national flag» on 24 May 1997 at 1.00 pm in Gostivar’s main square, at which the flag of the Republic was not hoisted, and the national anthem of Albania was played. The applicant publicly expressed his thoughts using, amongst others, the following formulations: «we give our life, but not the flag», «we do not recognise decisions of the Constitutional Court of the Republic of Macedonia», «our territories in Macedonia are ours, that should be known once and for good», «our flag will always fly on each of our territories», «their black hand bloodied the university in Tetovo yesterday; this same black hand wishes to bloody the national flag today… I sent them a clear message: as long as I’m in the Municipality of Gostivar, no one can touch the Albanian flag», «in the election campaign I promised that we shall make Gostivar an Albanian city, and we will», «we will use the Albanian flag, there will be official use of the Albanian language and many other institutions, as there will be very soon in the other Albanian municipalities set up within the framework of the project for regionalism».

It is of the utmost importance that this protest meeting was organised after the passing and as a consequence of the Decision of the Constitutional Court of the Republic of Macedonia U.br.52/97 of 21 May 1997 by which the constitutionality and legality of Article 140 of the Municipality of Gostivar’s Statute was reviewed and specific acts and gestures undertaken based on the disputed article of the Statute were disallowed until the taking of a final decision by the Court.

The Constitutional Court held that the Municipal Court of Gostivar by its judgment had found the applicant guilty because, abusing his office as Mayor of Gostivar and by continuous activity, he had incited and inflamed national hatred, discord and intolerance among the citizens of the Municipality of Gostivar and more widely among citizens of other neighbouring municipalities and organised resistance and disobedience toward legal decisions and government measures by the following acts:

– first, when enacting the statutory decision of the Municipal Council of Gostivar for the use of flags in the municipality, he did not point out the unconstitutionality and illegality of passing such a decision, and after its announcement and publication he did not notify the Government of the Republic of Macedonia of its unconstitutionality and illegality, which a mayor is obliged to do under the Law on Local Government;

– then, although he knew the decision to be unconstitutional and illegal, immediately after its enactment he undertook the following activities;

– by his permission, the flags of the Republic and the flags of Albania and Turkey were hoisted on the masts in front of the building of the Municipal Council of Gostivar;

– before Labor Day holidays, he gave written notification to all public institutions, informing them that they were obliged, during the Labor Day holidays, to hoist these flags in conformity with the statute;

– he organised armed guards to be stationed in front of the building of the Council of Municipality of Gostivar to prevent the removal of the flags from the masts;

– he created a central crisis headquarters, and made written operation plans for constituting central and regional organising structures, managing bodies within the central crisis headquarters and regional crisis headquarters;

– he created a managing body for establishing a strategic and operating plan in case of police intervention, which precisely determined the structure and names of people who would be in charge of questions such as information and propaganda, security, transport and connections, finances, medical aid etc.;

– he suspended the municipality’s management and Council, specifying the primary tasks as temporary ones; and

as a result of such activity, on 26 May 1997, following the desecration of the flag of Albania by a group of citizens of Macedonian ethnic origin, a disturbance of the public order and peace began in front of the building of the Municipal Council of Gostivar by a fight among a large group of citizens of Macedonian and Albanian nationality. Further, on the morning of 9 July 1997 the police forces took action to enforce the Constitutional Court’s Decision U.no. 52/97 dated 21 May 1997 and U.no. 52/97 dated 11 June 1997 according to which the flags of the Republics of Albania and Turkey should have been taken down from the masts. As a result of organised resistance and disobedience in the face of this lawful decision, its enforcement was hard to achieve, and direct armed conflict ensued between the forces of the Ministry of Internal Affairs and the assembled people, causing three deaths as well as bodily injuries to a large group of citizens and police officers.

The applicant argued that freedom of thought and public expression of thought are absolute rights guaranteed by the Constitution and that each restriction or additional regulation means the negation of these rights. Therefore his conviction and sentencing generated direct violation of rights guaranteed by the Constitution.

The Court held, however, that, given all the circumstances in which it was undertaken, the applicant’s gesture had completely lost the content of public expression of thought in the sense in which the Constitution guarantees and protects this freedom. In light of the circumstances of the event, the applicant’s public expression of thought did not expose his intellectual or political attitude, nor did it represent in some manner the intellectual and political convictions of the participants of the meeting, but represented a direct call and initiative for the present people of Albanian ethnic origin not to obey i.e. to destroy the legal system by force, inciting national intolerance, discord and hatred among the population in Gostivar, in a situation of already perceptible tension amongst people of different ethnic origin.

MKD-1998-1-002
a) Republic of Macedonia / b) Constitutional Court / / c) 08/04/1998 / d) U.br. 215/97 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette) .

Keywords of the Systematic Thesaurus:

– Constitutional Justice – Jurisdiction – Types of litigation – Restrictive proceedings – Banning of political parties.
– General Principles – Legality.
– Institutions – Legislative bodies – Political parties – Prohibition.
– Fundamental Rights – General questions – Limits and restrictions.
– Fundamental Rights – Civil and political rights – Freedom of expression.
– Fundamental Rights – Civil and political rights – Freedom of association.

Headnotes:
Everybody has a right to express his own political belief, as well as to associate freely and found a political party, provided that its activities are not focused toward violent destruction of the constitutional system of the Republic of Macedonia, or toward supporting or calling for war or aggression or inflaming national, racial or religious hatred or intolerance.

Summary:
Several natural persons lodged petitions with the Constitutional Court challenging the constitutionality and legality of the programs and statutes of the Albanian minority’s political parties – «The Party for Democratic Prosperity of Albanians» (PDPA) and «National Democratic Party» (NDP), as well as their functioning.

According to the applicants, the necessity of reviewing the constitutionality and legality of the Albanian minority’s political parties arises from their establishment on an ethnic basis with programmes and statutes focused toward inflaming national hatred and religious intolerance.

In light of the previously determined actual situation and the analysis of the programs’ and statutes’ content, the Court considered that there is no constitutional basis for interpreting these acts as unconstitutional and illegal.

The aforementioned texts define the political parties in question as open ones for all citizens no matter what their national, religious or social affinities, and as parties which advocate total citizen and national equality, democratic prosperity of the Republic and the growth of general principles of market economy and political democracy and pluralism, respect of basic human rights and freedoms, decentralisation and demilitarisation of the country etc.

Among other things, PDPA advocates setting up a basis in the system for free use of the mother tongue; the promotion of the Albanian language as an official one in the Republic of Macedonia; the continuation of the persistent efforts of the Albanians in this region for political identity, systematic equality and dignity; lawful regulation of free use of the national symbols and celebration of historical events characteristic to each national, cultural or religious community etc.

Regarding the above, the Court ruled that there is no objective reason for starting a procedure for reviewing the constitutionality and legality of the programs and statutes of the PDPA and NDP.

The Court rejected the petitions for judging the conformity of these programmes and statutes with the provisions stipulated in the Law for political parties, as well as the functioning of PDPA and NDP, specifying that these issues are beyond its scope and competence.

MKD-1998-1-001
a) Republic of Macedonia / b) Constitutional Court / / c) 18/03/1998 / d) U.br. 220/97 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 17/98.

Keywords of the Systematic Thesaurus:

– General Principles – Separation of powers.
– General Principles – Rule of law.
– General Principles – Certainty of the law.
– General Principles – Equality.
– Institutions – Executive bodies – Relations with judicial bodies.
– Fundamental Rights – Civil and political rights – Right to property.

Headnotes:
There is no constitutional basis for granting special protection of property relations based upon illicit withdrawal or appropriation of socially owned i.e. state-owned land by prescribing a special administrative procedure outside current principles of civil law.

Summary:
Upon the petition lodged by a natural person from Skopje, the Constitutional Court initiated proceedings for reviewing the constitutionality of the Law regulating the property relations set up by the unlawful seizure of socially owned land, published in the Official Gazette of the Socialist Republic of Macedonia no. 31/72 and 44/91.

Pursuant to the aforementioned law, the possessor of the illicitly seized land obtains ownership rights over the socially owned land which up to 6 April 1941 fulfilled all necessary conditions for acquisitive prescription. Legal proceedings in this kind of property relations are initiated 1) ex officio, 2) by the beneficiary of the illicitly seized land or 3) by the possessor, and the municipal administrative body competent for property relationships is authorised to enforce the decision.

The Law enacted in 1959 prescribed parallel regulation in the legal proceedings regarding property relations based upon appropriation of socially owned land: the relationships established up to 1959 are disputed under administrative procedure, and those established after 3 May 1959 are treated before municipal courts pursuant to the Law on Civil Procedure.

The disputed Act, passed in 1972, and its Amendments from 1991 prescribed that all appropriations of this kind will be treated by the Republic’s administrative body for property relationships under administrative procedure.

The protection envisaged, prescribing the specific procedure for socially owned land, has a constitutional basis in the Constitution of the National Republic of Macedonia dated 1946 and the Constitution of the Socialist Republic of Macedonia dated 1963 and 1974, which, in comparison with other kinds of ownership, gave social ownership special, privileged treatment.

The current constitutional and legal system, however, removes the special status of social ownership and guarantees this ownership right in a generic way. Taking into consideration the conclusion that socially owned land belongs to the Republic, which is its rightful claimant during the process of privatisation and transformation, which can be drawn from the essence of the legal texts, it seems that there is no constitutional basis for granting a special protection of this land by prescribing a special administrative procedure outside current principles of civil law.

The disputed Law is thus inconsistent with the equal treatment of all kinds of ownership legal relationships stipulated by the Constitution of 1991, as well as with the respect of the basic values of certainty of law and separation of powers. The Constitutional Court, decided to abolish the disputed Law.

MKD-1997-2-005
a) Republic of Macedonia / b) Constitutional Court / / c) 16/07/1997 / d) U.90/9, 94/97 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 37/97.

Keywords of the Systematic Thesaurus:

– General Principles – Rule of law.
– Institutions – State Symbols.
– Institutions – State Symbols – Flag.
– Institutions – Federalism, regionalism and local self-government – Municipalities.
– Institutions – Federalism, regionalism and local self-government – Municipalities.
– Institutions – Federalism, regionalism and local self-government – Distribution of powers.
– Fundamental Rights – Civil and political rights – Protection of minorities and persons belonging to minorities.

Headnotes:
Questions related to State symbols, including the flag of the Republic, cannot be regulated by an act of a municipality or by any act other than by law.

Summary:
The Government and the Democratic Party lodged petitions with the Court challenging the Decision on Use of Flags in the Territory of the Municipality of Tetovo, which was passed by that municipality’s council. The Decision regulated the manner in which the flag of the Republic and the flag of the Albanian nationality were to be used, providing, inter alia, that the flag of the Republic together with the flag of the Albanian nationality and the flag of Tetovo should be displayed at all times in front of the municipality building in Tetovo.

The Court repealed the challenged Decision as unconstitutional and unlawful, and stated the following reasons:

Under [ENG-MKD-A-5] Article 5 of the Constitution, the State symbols of the Republic are the coat of arms, the flag and the national anthem, which are adopted by law by a two-thirds majority vote of the total number of Assembly Representatives.

According to this constitutional provision, questions related to the State symbols, including the flag of the Republic, are to be regulated by law, i.e. this question cannot be a matter of regulation by municipality act.

Nor does [ENG-MKD-A-48] Article 48 of the Constitution authorise a municipality to regulate the manner in which the flag of a nationality should be used since this provision concerns the right of members of nationalities freely to express, foster and develop their identity and national values and at the same time lays down the State’s obligation to guarantee the protection of the ethnic, cultural and religious identity of the nationalities.

The Act on the Use of Flags was amended in 1989 so that the provisions which had regulated the use of the flags of nationalities were repealed. For this reason the Court found that the challenged Decision which provided for the constant use of the Albanian nationality’s flag went beyond the legal framework.

Under [ENG-MKD-A-115] Article 115 of the Constitution, a municipality is autonomous in the execution of its constitutionally and legally determined sphere of competence. Considering the fact that neither the Constitution nor ordinary statute determine the regulation of the use of the flag to be within the municipality’s sphere of competence, the Court held that the decision challenged had been passed without any constitutional or legal basis.

Supplementary information:
In the meantime, however, the Act on the Use of the Coat of Arms, the Flag and the National Anthem of the Republic and the Act on the Use of Flags of the Members of Nationalities have both been adopted by the Republic Assembly.

MKD-1997-2-004
a) Republic of Macedonia / b) Constitutional Court / / c) 07/05/1997 / d) U.23/97 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 31/97.

Keywords of the Systematic Thesaurus:

– Institutions – Languages – Official language(s).
– Institutions – Languages – Regional language(s).
– Fundamental Rights – Equality.
– Fundamental Rights – Civil and political rights – Linguistic freedom.
– Fundamental Rights – Civil and political rights – Protection of minorities and persons belonging to minorities.
– Fundamental Rights – Economic, social and cultural rights – Right to education.

Headnotes:
According to [ENG-MKD-A-48] Article 48 of the Constitution, members of the nationalities of the Republic have the right to instruction in their language in primary and secondary education, as determined by law.

Legal provisions which provide for instruction in practical subjects in the curriculum of the Faculty of Education to be conducted in the languages of the nationalities for students who are being trained to teach at pre-school and primary school levels do not introduce the right for members of the nationalities to instruction in their language at tertiary level and do not extend this constitutionally guaranteed right but create the conditions necessary for the accomplishment of their right to instruction in their language at primary and secondary levels as guaranteed by the Constitution.

The right to education of the members of the nationalities in their own language should be treated separately from questions concerning the use of their language as an official language in the Republic.

International agreements ratified in accordance with the Constitution are part of the internal legal order and they are directly applicable.

Summary:
Several legal and natural persons lodged petitions with the Court challenging the constitutionality of the Act on Languages, in which instruction is conducted at the Faculty of Education «St. Climent Ohridski» in Skopje. The Act provides for instruction in the Macedonian language and also in the languages of the nationalities for students at the Faculty of Education who are training to be teachers at pre-school and primary school levels. The petitions were based on the statements that this Act is inconsistent with [ENG-MKD-A-7] Articles 7 and [ENG-MKD-A-48] 48 of the Constitution because it introduces a right for members of the nationalities to instruction in their own language in tertiary education and also enables the use of the language of members of the nationalities as an official language throughout the territory of the Republic.

The Court held that the challenged law does not violate the Constitution and stated the following reasons:

According to [ENG-MKD-A-7] Article 7 of the Constitution, the Macedonian language, written using its Cyrillic alphabet, is the official language of the Republic. In self-governing regions where the majority of the inhabitants belong to another nationality, in addition to the Macedonian language and Cyrillic alphabet, the language and alphabet of this nationality are also in official use in such manner as determined by law.

In light of this constitutional provision, it is clear that the official language of the Republic is the Macedonian language and its Cyrillic alphabet. It is also clear, on the basis of the same constitutional provision and of the Law on Local Self-Government, that the use of the languages of the nationalities as official languages is provided only within the territory of the corresponding municipalities. The question arises whether the provision of instruction at the Faculty of Education in certain subjects of the curriculum for students who are members of the nationalities in their own language should be treated as use of the language in the spirit of [ENG-MKD-A-7] Article 7 of the Constitution and whether it violates the constitutional principle which provides for the Macedonian language and its Cyrillic alphabet as the official language of the Republic.

In the opinion of the Court, the right to education for members of the nationalities in their own language should be treated separately from the use of their language as an official language. The Court found that the contested Act does not regulate questions concerning the official use of the languages of nationalities, but it regulates certain questions belonging to the sphere of education of members of nationalities, so that its consistency with [ENG-MKD-A-7] Article 7 of the Constitution cannot be put into question.

The Court emphasized that the relevant issue in this case is whether the Act challenged has constitutional and legal grounds in the constitutional guarantees of the right to education for the members of the nationalities in their own language. The Court thus proceeded to examine the Act in that direction.

Under [ENG-MKD-A-8] Article 8 of the Constitution, the basic freedoms and rights of individuals and citizens, recognized in international law and set down in the Constitution, and the free expression of national identity, are part of the fundamental values of the constitutional order of the Republic. Under [ENG-MKD-A-44] Article 44 of the Constitution, everyone has a right to education, education is accessible to everyone under equal conditions and primary education is compulsory and free.

The right to instruction in their own language for members of nationalities is one of the basic cultural rights entrenched in the Constitution. [ENG-MKD-A-48] Article 48 of the Constitution provides members of nationalities the right freely to express, foster and develop their identity and national values. Under the same provision, members of the nationalities have the right to instruction in their language in primary and secondary education, as determined by law.

In light of the constitutional provisions cited above, it is clear that the members of nationalities have the right to education in their own language in the territory of the Republic and this right is not related to the issue of the use of the language of nationalities in municipalities.

The Act challenged provides for instruction in the languages of the members of nationalities in subjects of the curriculum which are specialised and which involve complex terminology: students training for the teaching profession require tuition in these subjects in their mother tongue. Bearing in mind that primary education is compulsory and is conducted in public institutions, in the Court’s opinion, the State has an obligation to provide for suitable measures in the educational sphere for the implementation of the right to instruction in one’s mother tongue. The Court emphasized that the Act challenged does not introduce a right for the members of the nationalities to instruction in their language at the tertiary level and does not expand the right entrenched in the Constitution but creates the conditions necessary for the implementation of the constitutionally guaranteed right to instruction in their language at primary and secondary levels.

The Court also considered international agreements related to the right to education of persons belonging to minorities such as the Framework Convention for the Protection of National Minorities and the Convention against Discrimination in Education to be a part of the internal legal order.

MKD-1997-1-003
a) Republic of Macedonia / b) Constitutional Court / / c) 19/03/1997 / d) U.180/96 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 16/97.

Keywords of the Systematic Thesaurus:

– Institutions – Federalism, regionalism and local self-government – Municipalities.
– Institutions – Federalism, regionalism and local self-government – Municipalities.
– Institutions – Federalism, regionalism and local self-government – Budgetary and financial aspects.
– Institutions – Federalism, regionalism and local self-government – Distribution of powers – Supervision.
– Institutions – Federalism, regionalism and local self-government – Distribution of powers – Supervision.

Headnotes:
The financial control exercised by local municipalities over the finances of local communities should be limited to the financial means provided by the municipality. That is, the control should not cover the financial means of the local communities which have been provided from other sources.

Summary:
The case was initiated by the Local Communities Committee, which challenged the Articles of Statutes of several municipalities which had authorised municipal councils supervisory boards to exercise financial control over the finances of local communities.

The Constitutional Court repealed the challenged provisions finding that they were not consistent with Articles 81 and 82 of the Law on Local Self-Government. Under Article 82 of the Law on Local Self- Government, the local community could be financed from several sources and the financial means provided by the local self- government unit are merely one of these sources. Considering this manner of financing, the Court found that the financial control exercised by municipalities over the finances of local communities should be limited only to the financial means which have been provided by the municipality in question and should not extend to the financial means provided by other sources. Thus it represents an infringement of the independent self-government of local communities.

MKD-1997-1-002
a) Republic of Macedonia / b) Constitutional Court / / c) 12/03/1997 / d) U.2/97 / /
e) Sluzben vesnik na Republika Makedonija (Official Gazette), 17/97.

Keywords of the Systematic Thesaurus:

– Constitutional Justice – Jurisdiction – Types of litigation – Electoral disputes – Local elections.
– Institutions – Elections and instruments of direct democracy – Eligibility.
– Institutions – Armed forces, police forces and secret services.
– Institutions – Armed forces, police forces and secret services – Armed forces.
– Institutions – Armed forces, police forces and secret services – Secret services.
– Fundamental Rights – General questions – Entitlement to rights – Natural persons – Military personnel.
– Fundamental Rights – General questions – Limits and restrictions.
– Fundamental Rights – Civil and political rights – Electoral rights – Right to stand for election.

Headnotes:
Any citizen, on reaching 18 years of age, acquires the right to vote and to be elected unless they have been deprived of civil capacity ([ENG-MKD-A-22] Article 22 of the Constitution).

The laws governing electoral procedure cannot prescribe limitations on electoral rights which extend the limitations already envisaged by the Constitution, i.e. they cannot prescribe limitation on the right to be elected for a certain category of citizens.

Summary:
The case was initiated by a citizen challenging the constitutionality of Article 5.3 of the Law on Local Elections, under which the members of the armed forces, uniformed police officers and authorised officers of the Ministry of Internal Affairs and Intelligence Agency, cannot be nominated or elected as members of Local Council or as mayor.

Under [ENG-MKD-A-22] Article 22 of the Constitution, any citizen on reaching 18 years of age acquires electoral rights. This right is enjoyed equally, universally and directly and it is exercised at free elections by secret ballot. Only persons deprived of civil capacity are excluded from the right to vote and to be elected. The Constitution does not distinguish between «active» and «passive» electoral rights which means that once the determined conditions are fulfilled the citizen acquires the right to vote and the right to be elected. No special conditions for the acquisition of the right to be elected are envisaged except for the election of the President of the Republic ([ENG-MKD-A-80] Article 80 of the Constitution).

In view of the fact that the Constitution has established fundamental electoral principles allowing the electoral regime and procedure to be determined by law, the legal presumption is that electoral laws should be consistent with the Constitution, i.e. they cannot contain restrictions on electoral rights which extend beyond the limits of the constitutional frame.

For these reasons, the Constitutional Court repealed the challenged provision since it restricts the right to be nominated and elected as member of Local Council or mayor for a significant number of citizens.

MKD-1997-1-001
a) Republic of Macedonia / b) Constitutional Court / / c) 25/12/1996 / d) U.59/96 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 5/97.

Keywords of the Systematic Thesaurus:

– General Principles – Rule of law.
– Fundamental Rights – General questions – Limits and restrictions.
– Fundamental Rights – Civil and political rights – Individual liberty – Deprivation of liberty.

Headnotes:
No citizen can be deprived of liberty except by a court decision for his or her detention in cases determined by law.

Summary:
The initiative was lodged by the Bar Council challenging Article 151.3 of the Law of Criminal Procedure.

Under the challenged provision, the police were authorised to summon citizens by a writ stating the reasons for the summons and to take them by force to a police station if they failed to respond to the summons, upon the condition that the summons contained the warning of such a consequence.

The Court repealed the challenged provision finding it unconstitutional, for the following reasons:

By [ENG-MKD-A-12] Article 12 of the Constitution, the human right to liberty is irrevocable. A person’s liberty cannot be restricted except by court decision and in such cases and according to such procedure as determined by law. The sense of this constitutional provision is that detention should be allowed only if both conditions are fulfilled cumulatively, i.e. the citizen can be detained only in cases determined by law and on the basis of a court decision for his or her detention (or any other kind of deprivation of liberty). Considering that the challenged Article envisages the apprehension of citizens who fail to respond to the summons, without the prerequisite of a court decision, the Court found that this provision is not consistent with the Constitution, since the constitutional requirement that both conditions under which the citizens could be deprived of liberty be fulfilled has not been respected.

MKD-1996-3-009
a) Republic of Macedonia / b) Constitutional Court / / c) 18/12/1996 / d) U.160/96 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 1/97 .

Keywords of the Systematic Thesaurus:

– Constitutional Justice – Jurisdiction – Types of litigation – Admissibility of referenda and other consultations.
– General Principles – Democracy.
– General Principles – Rule of law.
– Fundamental Rights – General questions – Limits and restrictions.
– Fundamental Rights – Equality.
– Fundamental Rights – Civil and political rights – Freedom of association.
– Fundamental Rights – Civil and political rights – Right to participate in political activity.

Headnotes:
By refusing the citizen initiative to call a referendum on premature elections for Representatives in the Assembly of the Republic, because the Assembly reasoned that there was no constitutional grounds for such a referendum, the right of the citizens for political association and activity in the frames determined by the Constitution and by law was neither excluded nor limited.

Summary:
Several complaints were lodged to the Constitutional Court by citizens for protection of the freedom of political association and activity. They all claimed that their freedom of political association and activity had been violated by the conclusion of the Assembly of the Republic which stated that there were no constitutional grounds for calling a referendum on premature elections for Representatives in the Assembly of the Republic. In this conclusion the Assembly stated that a referendum on petition lodged by at least one hundred and fifty thousand electors, provided by [ENG-MKD-A-73] Article 73.3 of the Constitution, may be called only for questions concerning the matters within its sphere of competence, and that the matter of premature elections of Representatives of the Assembly does not belong to this sphere. The citizens who lodged the complaints to the Court had signed the petition calling for a referendum.

The Court found that a citizen initiative had been put forward by the Democratic Party and VMRO-DPMNE (political party) by collecting one hundred and fifty thousand signatures of voters calling for a referendum on the question: «Are you in favour of scheduling premature elections for Representatives of the Assembly of the Republic of Macedonia, which would be exercised at the end of 1996 ?». Over one hundred and fifty thousand signatures had been collected. The petition had been submitted to the Assembly and the Assembly adopted a conclusion that there were no constitutional grounds for calling such a referendum.

The Court refused the complaints lodged on the ground that the freedom of political association and activity had been violated, for the following reasons:

The Constitution provides direct constitutional protection of certain human and citizens rights and freedoms in cases of its violation. One of these rights is the freedom of political association and activity. Under the Constitution, citizens are guaranteed freedom of association to exercise and protect their political, economic, social, cultural and other rights and convictions. Citizens may freely establish associations of citizens and political parties, join them or resign from them. According to this, the Constitution gives legal grounds which are general and equal for all citizens and provides equal position for all citizens in their opportunity to exert influence on the political power in the State.

The freedom of political association and activity, as a fundamental right, is exercised directly under the constitutional provisions. According to the constitutional concept of indivisibility and mutuality of human and citizen freedoms and rights, the freedom of political association and activity should not be its own purpose but it is a necessary condition for a person’s affirmation as a free individual in cases when he needs to exercise his conviction and interests in a political way in association with others, in order to take part or to influence the political power. The exercising of this freedom by one person is limited by the exercising of the same freedom by other persons. It is not an absolute freedom but has to be exercised according to the constitutional provisions and in the institutions provided by the Constitution. The exercising of this freedom cannot be used for violent destruction of the constitutional order or for violation of constitutional provisions.

Under [ENG-MKD-A-61] Article 61 of the Constitution, the Assembly of the Republic is a representative body of the citizens and a supreme legislative body, composed of Representatives elected at general, direct and free elections. In carrying out the duties within its sphere of competence, the Assembly has adopted the challenged conclusion in which it has found that there are no constitutional grounds for calling a referendum on question for premature elections, because the Constitution has no opportunity to provide for such an election. By this conclusion, according to the Court, the right of the citizens to political association and activity in the frames determined by the Constitution and the law was neither excluded nor limited. Thus by the act of lodging the petition for calling a referendum the citizens had an opportunity to influence in a political way state power, because the Assembly as a supreme legislative power, could allow the petition if the majority of the Representatives voted for it.

MKD-1996-3-008
a) Republic of Macedonia / b) Constitutional Court / / c) 23/10/1996 / d) U.205/96 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 62/96 /

Keywords of the Systematic Thesaurus:

– General Principles – Democracy – Pluralist democracy.
– Institutions – Legislative bodies – Political parties – Role.
– Institutions – Federalism, regionalism and local self-government – Municipalities.
– Institutions – Federalism, regionalism and local self-government – Basic principles – Autonomy.
– Institutions – Elections and instruments of direct democracy – Preliminary procedures.
– Institutions – Elections and instruments of direct democracy – Preliminary procedures – Candidacy.
– Fundamental Rights – Equality – Scope of application – Elections.
– Fundamental Rights – Civil and political rights – Freedom of opinion.
– Fundamental Rights – Civil and political rights – Freedom of expression.
– Fundamental Rights – Civil and political rights – Right to participate in political activity.
– Fundamental Rights – Civil and political rights – Electoral rights – Right to vote.
– Fundamental Rights – Civil and political rights – Electoral rights – Right to stand for election.

Headnotes:

The legal provision which provides that the agreement given by a candidate to be nominated for local councillor and mayor cannot be withdrawn enables every political party and group of voters who have nominated candidates to take part in the elections without any opportunity of violation once the electoral procedure has been started.

Such provision does not lead to a violation of the freedom of personal conviction guaranteed by the Constitution, since the candidate, by giving the agreement, has already expressed his political conviction.

Summary:
The case was initiated by the Democratic Party challenging the constitutionality of Article 18.2 of the Local Elections Act. Under the challenged article, the written agreement of candidates is required for the registration of the nominations of the candidates for local councillors and mayors, and this agreement cannot be withdrawn. In the applicant’s opinion, this provision, which precludes withdrawal of the candidate’s agreement, violates freedom of personal conviction, conscience, thought and public expression of thought guaranteed by the Constitution.

The Constitutional Court found that the challenged article does not violate the Constitution, for the following reasons:[ENG-MKD-A-16] Article 16 of the Constitution guarantees the freedom of personal conviction, conscience, thought and public expression of thought. Under [ENG-MKD-A-22] Article 22 of the Constitution, every citizen on reaching 18 years of age acquires the right to vote. This right is equal, universal and direct, and is exercised at free elections by secret ballot. Under the Constitution, political pluralism and free, direct and democratic elections are one of the fundamental values of the constitutional order of the Republic of Macedonia.

The provision of regular and legal elections in all phases of the electoral procedure and complete protection of the citizens’ right to vote is important for the functioning of elections and a state based on the rule of law.

The right to vote is one of the most important political rights, which can be active and passive. The Constitution has not made any difference between these two types of the right to vote, which means that under [ENG-MKD-A-22] Article 22 of the Constitution every citizen acquires the right to vote and to be elected.

The freedom of personal conviction, conscience, thought and public expression of thought are mutual and reciprocal. The freedom of personal conviction is expressed through personal decisions and choices, depending on an individual’s personal interests and his relationship with the society in which he lives. The freedom of personal conviction, as a result of the process of thinking, is especially expressed (besides in religious confession), in an individual’s political conviction, which in practice means accepting or rejecting a particular political movement, actively supporting such a movement or not, founding and being a member of a political party in order to express, propagate and exercise certain political purposes.

But exercising freedom and rights must not harm other people and the community, since responsibility is one of the components for exercising human freedom and rights. Although the right to be elected is an individual right, its exercising creates rights and obligations, and that is why, in the Court’s opinion, the one-sided withdrawal of one party’s candidate could violate the electoral procedure, since it is a continuing process consisting of numerous mutual rules.

From the moment of accepting a particular nomination, it is not only the candidate’s right to be elected which is exercised, but also the right of political parties to take part in elections and the right of citizens to nominate their candidates.

Breaking one phase of the electoral procedure by withdrawing the nominated candidate could hinder the completion of the elections, thereby violating of voters’ rights or the rights of other subjects (nominators). Taking this into consideration, the Court found that the challenged article which provides that written agreement given by candidates cannot be withdrawn, actually enables every political party and group of voters who have nominated candidates to take part in elections, without any opportunity to violate the electoral procedure once it has been started.

MKD-1996-3-007
a) Republic of Macedonia / b) Constitutional Court / / c) 23/10/1996 / d) U.216/96 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette) /.

Keywords of the Systematic Thesaurus:

– Institutions – Judicial bodies – Organisation – Members – Status.
– Institutions – Judicial bodies – Organisation – Members – Status – Incompatibilities.
– Institutions – Federalism, regionalism and local self-government – Municipalities.
– Institutions – Federalism, regionalism and local self-government – Basic principles – Autonomy.
– Institutions – Federalism, regionalism and local self-government – Institutional aspects – Courts.
– Institutions – Elections and instruments of direct democracy.
– Institutions – Elections and instruments of direct democracy – Electoral Commission.
– Fundamental Rights – Equality – Scope of application – Elections.

Headnotes:
The office of judge of the municipal court is not incompatible with the office of president of the electoral commission, since the judge who is appointed as president of the electoral commission has no opportunity by law to decide as a judge in cases involving unlawful activities of the electoral commission.

Summary:
The case was initiated by a citizen challenging the constitutionality of Article 9.3 of the Local Election Act. Under the challenged article, the president of the electoral commission is appointed from the ranks of judges of the municipal courts (first degree courts), and the secretary of the commission should be a jurist. According to [ENG-MKD-A-100] Article 100.3 of the Constitution, the office of judge is incompatible with holding any other public office or profession, or with membership of a political party, and for this reason the applicant claimed that the office of judge is incompatible with the office of president of the electoral commission.

The Constitutional Court found that the challenged provision does not violate the Constitution, for the following reasons:

Under the Law on Courts, the office of judge is incompatible with the office of Representative in the Assembly and with the offices in the state and municipal administration. The judge cannot perform any other public office or profession, except other offices defined by law.

The Local Election Law defines the procedure and the conditions for the elections of the members of the Council of local self- government and for the elections of the mayors of the municipal communities. Under this Law, the members of the electoral commissions are appointed by the State Electoral Commission for a term of four years. They are composed of a president and four members. The president of the electoral commission is appointed from the ranks of judges of the municipal courts.

The powers of the electoral commission consist of a number of technical activities, as well as the duty to ensure the observance of electoral procedure. It is therefore not by accident that the legislator has chosen to provide that the president of the electoral commission should be appointed from the ranks of the judges of the municipal courts, having in mind the provision of the Law on Courts which allows judges to perform other offices defined by law, such as in this case.

The purpose of incompatibility of offices is to make it impossible for the same person to perform double activity and decide for the same matter in the first and second degree. In this case, in the Court’s opinion, the appointing of a judge of the municipal court as president of the electoral commission does not create incompatibility of two public offices. Thus the judge of the municipal court as president of the electoral commission actually continues his professional activity, in order to provide for skilled observance and legal implementation of the electoral procedure. The judge performs this office within the competence of the electoral commission, but he has no opportunity to decide as a judge in cases involving unlawful activities of the electoral commission, since those cases, under the law, fall under the higher courts’ jurisdiction.

Finally, the Constitutional Court states that the president of the electoral commission is appointed from the ranks of judges of municipal courts, precisely because he is a judge, in order to provide lawful and professional implementation of part of the electoral procedure activities.

MKD-1996-2-006
a) Republic of Macedonia / b) Constitutional Court / / c) 03/07/1996 / d) U.297/95 / /e) Sluzben vesnik na Republika Makedonija (Official Gazette), 40/96 / .

Keywords of the Systematic Thesaurus:

– General Principles – Separation of powers.
– Institutions – Executive bodies – Powers.
– Institutions – Judicial bodies – Jurisdiction.

Headnotes:
The Constitution does not draw any distinction between penal offences based upon the level of their social danger, and has not established different types of penal offences. Therefore, the principles of criminal procedure are applicable to all penal offences in general, including misdemeanours.

Guilt in respect of a penal offence may be established only by a court decision.

The State administrative bodies are not authorised to conduct any type of penal proceedings against citizens, nor to pronounce sentences following conviction for criminal or other offences.

Summary:
The case was initiated by a legal person challenging the constitutionality and legality of the provision contained in the Rules on the Government, which authorised the government and other bodies of the State administration to conduct penal proceedings against natural and legal persons and to pronounce sentences in some cases of minor non-criminal (administrative) offences.

The Constitutional Court repealed the challenged provision on the grounds that, according to the Constitution, guilt in respect of a penal offence may be established only by a court decision. The Constitution does not distinguish among penal offences on the basis of the level of their social danger nor in regard to the establishment of different types of penal offences, which means that only courts are authorised to conduct penal proceedings. Under the Constitution, the legislative, executive and judicial power are strictly divided and their competences may not be mixed. Therefore the State administrative bodies may not be authorised to conduct any type of penal proceedings.

Supplementary information:
In the same period of reference the Constitutional Court repealed provisions concerning the same matter which were contained in ten other statutes.

MKD-1996-2-005
a) Republic of Macedonia / b) Constitutional Court // c) 12/06/1996 / d) U.27/96 /
/ e) Sluzben vesnik na Republika Makedonija (Official Gazette), 33/96 / .

Keywords of the Systematic Thesaurus:

– General Principles – Legality.
– General Principles – General interest.
– Institutions – Public finances – Taxation.
– Fundamental Rights – Equality – Scope of application – Public burdens.
– Fundamental Rights – Civil and political rights – Inviolability of the home.
– Fundamental Rights – Civil and political rights – Right to property – Other limitations.

Headnotes:
The Constitution guarantees the inviolability of the home. The right to the inviolability of the home may be restricted only by a court decision in case of detection or prevention of criminal offences or protection of people’s health.

The provisions of a statute which authorise the officer of public tax administration to enter into the rooms of the taxpayer against his will in order to make an inventory of the objects suitable for forced tax collection and which are assumed to be found in the rooms, actually provides for the unlawful entry into the home of a taxpayer.

The Constitution guarantees the right of ownership of property. No person may be deprived of his property or of the rights deriving from it, except in cases concerning the public interest which are determined by law.

The provision which allows forced tax collection not only from the taxpayer, but also from the adult members of his family who live together with the taxpayer at the moment when the tax obligation arises, is unconstitutional since it introduces restrictions or on the deprivation of another person’s property rights only because of the fact of living together with the taxpayer.

Summary:
The case was initiated by a citizen challenging the constitutionality of two provisions of the Statute on Personal Income’s Tax (Official Gazette, no. 80/93).

The first provision provided that if the taxpayer declined to open his rooms by himself to allow the officer of public tax administration to make an inventory of the objects suitable for forced tax collect, which are assumed to be found in the rooms, the officer is authorised to open the closed rooms and to enter against the will of the taxpayer.

The Constitutional Court found that this provision was not in accordance with the constitutional guarantee of the inviolability of the home, which may be restricted only by a court decision in cases of detection or prevention of criminal offences or the protection of people’s health. The challenged provision provided for entering into the taxpayer’s rooms against his will. Since the Statute did not specifically define the kinds of rooms into which the officer may enter against the will of the taxpayer, it could mean that the home of the taxpayer is also included, which would make this provision unconstitutional.

The other challenged provision provided for forced tax collection not only from the taxpayer, but also from the adult members of his family who lived together with the taxpayer at the moment when the tax obligation arose.

The right to ownership of property is guaranteed by the Constitution. No person may be deprived of his property or of the rights deriving from it, except in cases concerning the public interest which are determined by law. Considering that the challenged provision provided for forced tax collecting not only from the taxpayer, but also from the adult members of his family who lived together with the taxpayer at the moment when the tax obligation arose, the Court ruled that this provision expanded the constitutional framework, since it introduced a restriction on or a deprivation of another person’s property rights only because of the fact of living together with the taxpayer.

MKD-1996-1-004
a) Republic of Macedonia/ b) Constitutional Court / / c) 20/03/1996 / d) U.br. 355/95, U.br. 356/95 / /e) Sluzben vesnik na Republika Makedonija (Official Gazette), 16/96 / .

Keywords of the Systematic Thesaurus:

– Institutions – Languages – Official language(s).
– Institutions – Languages – Minority language(s).
– Fundamental Rights – Civil and political rights – Linguistic freedom.

Headnotes:
Laws which provide for the keeping of pedagogical evidence and documentation only in the language of instruction, and not in addition in the Macedonian language, are not in conformity with the Constitution.

Summary:
In the course of its examination of the issue, the Court recalled that the Constitution allowed for the instruction in primary and secondary education to be given in the language of the national minorities, as well as that the Constitution identified the Macedonian language and its Cyrillic alphabet as the official language in Republic of Macedonia and that in the units of local self-government, where the majority or a considerable number of inhabitants belong to a national minority, in addition to the Macedonian language and its Cyrillic alphabet the language and alphabet of those minorities are also in official use.

MKD-1996-1-003
a) Republic of Macedonia / b) Constitutional Court / / c) 20/03/1996 / d) U.br. 343/95, U.br. 344/95, U.br. 10/96 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 17/96 / .

Keywords of the Systematic Thesaurus:

– Fundamental Rights – Civil and political rights – Non-retrospective effect of law.
– Fundamental Rights – Economic, social and cultural rights – Commercial and industrial freedom.

Headnotes:
Any statutory obligations on the register court to automatically erase from the register companies which had not communicated a contract of employment to their employees is not in conformity with the constitutional guarantee of the freedom of the market and entrepreneurship, because the activity of such companies in question produces credit-debt relationships which can be solved only through regular procedures in question provided for by the law on bankruptcy and liquidation. The provisions of the law are not in conformity with the constitutional prohibition on the retroactivity of laws and other regulations because they extend their effects to companies which were registered before the entry into force of those provisions.

MKD-1996-1-002
a) Republic of Macedonia/ b) Constitutional Court / / c) 13/03/1996 / d) U.br. 337/95 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 16/96 / .

Keywords of the Systematic Thesaurus:

– Constitutional Justice – Jurisdiction – The subject of review – Acts issued by decentralised bodies – Sectoral decentralisation.
– Institutions – Legislative bodies – Powers.

Headnotes:
The right to notice in cases of dismissal belongs to the group of rights which are to be regulated by law and by collective agreements. In this framework, the manner of regulating the minimum period of notice of dismissal provided for by law cannot be changed by a collective agreement. The changes in the length of the period of notice made by the collective agreement was not in conformity with the Constitution and the law.

MKD-1996-1-001
a) Republic of Macedonia / b) Constitutional Court / / c) 17/01/1996 / d) U.br. 293/95, U.br. 323/95 / / e) Sluzben vesnik na Republika Makedonija (Official Gazette), 6/96 and 17/96 / .

Keywords of the Systematic Thesaurus:

– General Principles – Vested and/or acquired rights.
– General Principles – General interest.
– Fundamental Rights – Civil and political rights – Right to property – Expropriation.

Headnotes:
The constitutional guarantee of the right of ownership of property and of the right of inheritance includes the prohibition on any restriction and deprivation of property or of the rights deriving therefrom except in cases justified by the public interest as determined by law. An expropriation which is based on a public interest determined by a regulation other than a law (in this case based on a municipal assembly’s decision on urban plans) is not in conformity with the Constitution.