U.no.42/2008

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 24 March 2010, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. Article 2 paragraph 1 in the part: “until the date of entry into force of this Law”, Article 8 in the part: “and publishes it in the “Official Gazette of the Republic of Macedonia”, Article 13, and Article 34 of the Law on Determination of an Additional Condition for the Performance of a Public Office (“Official Gazette of the Republic of Macedonia”, nos.14/2008 and 64/2009) SHALL BE REPEALED.

2. The Resolution for suspension of the execution of the individual acts or actions taken on the basis of the challenged provisions noted in item 1 of this decision SHALL BE PUT OUT OF EFFECT.

3. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

4. Upon the initiatives submitted by Jonche Cvetkovski from Skopje, the Foundation “Institute Open Society – Macedonia” Skopje, Stamen Filipov from Skopje, and the lawyer Panche Dokuzov from Shtip, the Constitutional Court of the Republic of Macedonia with its Resolutions U.no.42/2008 and U.no.77/2008 of 27 January 2010 instigated proceedings for appraising the constitutionality of the provisions of the Law noted in item 1 of the present Decision, as there was a reasonable question raised as to their accordance with the Constitution.

5. The Assembly of the Republic of Macedonia, as the adopter of the challenged Law, on 2 March 2010 submitted an answer to the Constitutional Court to the statements referred to in the Resolution for initiation of a procedure for appraising the constitutionality of the provisions challenged.

6. At its session the Court found that under Article 2 paragraph 1 of the Law on Determination of an Additional Condition for Performing a Public Office, the candidate for a holder or the holder of a public office, who in the period prior to the adoption of the Declaration of the Antifascist Assembly of the National Liberation of Macedonia (ASNOM) for the fundamental rights of the citizen of Democratic Macedonia at the First Session of ASNOM on 2 August 1944 until the date of entry into force of this Law, was not registered in the dossiers of the state security bodies of the Republic of Macedonia and the civilian and military bodies of the SFRY state security as a secret collaborator or secret informer in the operational collection of information and data (hereinafter: information) that were the subject of processing, maintenance, and use by the state security bodies, in the form of automated or manual collections of data and dossiers, created and kept for certain persons, with which the fundamental freedoms and rights of the citizens were violated or restricted for political or ideological reasons, meets the additional condition for being a candidate or for performing a public office.

Under Article 8 of the same Law, the Commission shall, ex officio, promptly and without a debate, establish with a resolution the failure of the candidate for a holder of a public office or the holder of a public office to submit the written statement and publish it in the “Official Gazette of the Republic of Macedonia”.

Pursuant to Article 13 of this Law, the Commission shall, immediately after the conclusion of the procedure for verification of the facts before the Commission, that is, if a procedure was conducted before a competent court after the court decision became effective, publish in the “Official Gazette of the Republic of Macedonia” the first name, father’s name, and last name of the person who cooperated with the state security bodies.

Under Article 34 paragraph 1 of the Law, the political parties may, in their constitutive and programme acts, envisage an additional condition, in the sense of this Law, for the candidates for holders or the holders of party functions, members of organs, and the employees in the expert services. Under paragraph 2 of this Law, associations of citizens and foundations may, in their constitutive and programme acts and codes of ethics, provide for an additional condition, in the sense of this Law, for the candidates for holders or the holders of managing functions, members of organs, and employees in expert services. Pursuant to paragraph 3 of the same Article, religious communities and religious groups may, in their constitutive and other internal acts and canons, provide for an additional condition, in the sense of this Law, for the candidates for holders or the holders of managing functions, and members of organs.

7. The Constitution of the Republic of Macedonia was adopted on 17 November 1991 (“Official Gazette of the Republic of Macedonia”, no. 52/1991), Amendments I and II (“Official Gazette of the Republic of Macedonia”, no. 1/1992), Amendment III (“Official Gazette of the Republic of Macedonia”, no. 31/1998), Amendments IV through XVIII (“Official Gazette of the Republic of Macedonia”, no. 91/2001), Amendment XIX (“Official Gazette of the Republic of Macedonia”, no. 84/2003), Amendments XX through XXX (“Official Gazette of the Republic of Macedonia”, no. 107/2005), and Amendment XXXI (“Official Gazette of the Republic of Macedonia”, nos. 3/2009 and 13/2009-correction).

Under the Preamble of the Constitution, the citizens of the Republic of Macedonia, the Macedonian people, as well as the citizens living within its borders who are part of the Albanian people, Turkish people, Vlach people, Serbian people, Roma people, Bosniak people, and others, taking over the responsibility for the presence and future of their fatherland, aware and grateful to their forerunners for the sacrifices and dedication in their efforts and fight for the creation of the autonomous and sovereign state of Macedonia and responsible before the future generation for the preservation and development of everything valuable in the rich cultural heritage and co-existence in Macedonia, equal in their rights and obligations towards the common good – Republic of Macedonia – in accordance with the tradition of the Krushevo Republic and the decisions of ASNOM and of the Referendum of 8 September 1991, have decided to constitute the Republic of Macedonia as an independent, sovereign state, with an intention to establish and reinforce the rule of law, guarantee human rights and civil freedoms, provide peace and co-existence, social justice, economic well-being and progress of personal and joint life, have adopted this Constitution, through their representatives in the Assembly of the Republic of Macedonia, elected in free and democratic elections.

Pursuant to Article 8 paragraph 1, lines 1, 3, and 4 of the Constitution, the fundamental values of the constitutional order of the Republic of Macedonia are the basic freedoms and rights of the individual and citizen recognised in international law and defined by the Constitution, the rule of law, and the division of state powers into legislative, executive, and judicial.

Pursuant to Article 9 of the Constitution, citizens of the Republic of Macedonia are equal in their freedoms and rights, irrespective of their sex, race, colour of skin, national and social origin, political and religious beliefs, property and social status. All citizens are equal before the Constitution and laws.

Under Article 23 of the Constitution, every citizen has the right to take part in the performance of public offices.

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

The Assembly of the Republic of Macedonia, pursuant to its competences defined in Article 68 of the Constitution, regulates the fields in social life by law. In this sense, the Assembly adopted the Law on Determination of an Additional Condition for the Performance of a Public Office, which defines an additional condition for the candidate for holder or the holder of a public office, election, or in a state and public service or in a public activity or in a public activity or another public mandate and for other tasks of public concern and activities of legal persons; regulates the setup and competence of the Commission for Verification of the Facts; and regulates the procedure for verification of the facts before the Commission and the court for the establishment of non-cooperation with the bodies of the state security and the legal consequences from such cooperation.

According to the explanation of the Proposed Law, with the adoption of this Law the Republic of Macedonia joined the countries from Central and Eastern Europe, and the neighbouring countries, which publicly distance themselves from the crimes committed in the totalitarian communist regimes, with the adoption and implementation of laws on lustration, as a measure which has yielded huge results for the development of democracy, democratic institutions, the rule of law, and the protection of the freedoms and rights of citizens, ensuring conditions for a rapid accession to NATO and the European Union.

Starting from the fact that a constitutional competence of the legislative power is the performance of the legislative function, the Court assessed that the legislator had a constitutional ground to regulate by law certain issue from the sphere of social life, which it found to be necessary and justified to be regulated separately, that is, to define normative presuppositions for the violators of human rights in the previous political system not to be the holders of public offices in a completely different, democratic system, in the sense of which it adopted the challenged Law.

Given what has been noted, the Court assessed that the time framework of the Law, defined in Article 2 of the Law, under which it is envisaged that lustration, in addition to the individuals who violated or restricted the basic rights and freedoms of citizens for political or ideological reasons for the purposes of realising material advantage or benefits in employment or promotion in the service in the previous social-political system, which was based on a one-party rule and legal system disabling victims to exercise their rights and enabling perpetrators not to be properly punished, be extended also to the period after 1991, when the current Constitution of the Republic of Macedonia was adopted, when a democratic system was established on the basis of division of powers, which in its basis has integrated the protection of human rights and freedoms, as a fundamental value of the constitutional order, on the basis of which normative rules and institutions have been established for the purposes of protecting individual human rights and freedoms, is not constitutionally justified. This for a reason that the current Constitution of the Republic of Macedonia provides for the bases for the building of a democratic society in which the rule of law and the protection of human rights and freedoms are elevated to the level of fundamental values of the constitutional order, as a result of which the inclusion of this period in the Law actually means negation of the values and institutions established in the Republic of Macedonia in accordance with the current Constitution and questioning of the functioning of the legal system, that is, the rule of law, as a fundamental value of the current social-political system.

Given that lustration means a process of dealing with the past, with a view to marking and eliminating the possibilities for further violation of human rights in the current social-political system, it means that it should apply to the period when the persons had a possibility to violate human rights and misuse them for personal goals, without the existence of established constitutional and legal mechanisms for their sanctioning, which, on the other hand, points out that lustration may not apply to the period when the state has built a different social-political system, which is based on human rights and their protection. The principle of the rule of law in democratic societies imposes that violation of human rights be sanctioned within the frameworks of a relatively lasting legal system, and not with measures of occasional and temporal character, as in the case with the challenged law in the given historical circumstances.

The arguments stated in the answer of the Assembly of the Republic of Macedonia concerning the need to adopt such a special law and concerning the social and political conditions in which the same was adopted with a consensus of all representatives of different political parties, which is particularly pointed out in the answer, were taken into consideration by the Court in the assessment of the constitutionality of the wholeness of the Law and the resulting decision was that the Law as a whole is in accordance with the Constitution.

The fact that is pointed out in the answer, meaning that a number of laws which pursuant to Article 7 of the Constitutional Law for the Implementation of the Constitution of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.52/1991) should have been adopted within six months at the latest from the date of adoption of the Constitution, among which the Law on the Courts and the Law on the Ombudsman, which directly refer to the protection of the freedoms and rights of the citizen, the guarantees and the direct mechanisms for their protection, were adopted much later than the time limit defined, which enabled a gap between the normative and the real, and given that no democratic system is immune to certain deviations in the conduct of the state bodies or individuals from what is defined and prohibited as a constitutional or legal norm, the Court found not possible to be a constitutional-legal argument and this period to be included by the lustration, as a measure which is in the direction of providing conditions for the protection of human freedoms and rights. The examples noted in the answer (the “tapping” affair, the monitoring and tapping of the VMRO-DPMNE party, the work of the Security and Counterintelligence Directorate, the slowness of the court authorities in the handling of the cases), as a justification that lustration should also apply to the period between the adoption of the 1991 Constitution and the adoption of the Law, may not be accepted as justified arguments for the resolution of the said and other similar cases by means of lustration, but, on the contrary, indicate that in a situation of established democratic system and legal institutions, the only right way for their resolution is through the institutions of the system and only in that way the rule of law and the protection of the freedoms and rights of the individual and citizen can be ensured, while lustration as a process aimed at dealing with the past, may and should apply only to the previous social-political system. Otherwise, the lustration process would emerge as a modern alternative of the existing legal system and the institutions established pursuant to the current Constitution of the Republic of Macedonia, whereby the historical dimension and justification of the Law is lost and it arises that such law is aimed at correcting the defects made by the institutions of the system in the conduct of the noted and other examples of violation of human freedoms and rights, which imposes the lustration process as a lasting solution, which neither is nor was the aim of the legislator, nor does it correspond with the essence of lustration.

Thereby, the Court took into consideration that in the Republic of Macedonia a Law on Dealing with Dossiers for Persons Kept by the State Security Service (“Official Gazette of the Republic of Macedonia”, no.52/2000) was adopted, which shall, pursuant to Article 21 of the same law, be implemented one year from the date of its entry into force, that is, from 13 July 2001. That means that the said Law, the content of which is undoubtedly linked with the issue of lustration, is exhausted in the application.

Starting from the understanding that the current Constitution of the Republic of Macedonia should be the basis with regard to which lustration of the individuals included by the Law will take place, that is, the values defined by this Constitution should be protected by lustration, the Court judged that the determination in the Law for lustration to apply also to the period after 1991, when this Constitution was adopted, until the adoption of the Law, essentially leads to negation of the values of the institutions established in the Republic of Macedonia in accordance with this Constitution, which leads to a violation of the principle of the rule of law, as a fundamental value of the constitutional order, as a result of which it assessed that Article 2 paragraph 1 in the part: “until the date of entry into force of this Law” of the Law is not in accordance with Article 8 paragraph 1 line 3 of the Constitution.

With regard to the indication in the answer of the Assembly about the incomplete and inconsistent application of the principles and doctrines, that is, the fundamental values of the constitutional order of the Republic of Macedonia and the other provisions of the Constitution, from its adoption until the adoption of the Law on Determination of an Additional Condition for the Performance of a Public Office, in the opinion of the Court there is no constitutional-legal obstacle to apply the existing legal regime defined by the laws, enabling the citizens who had their rights violated, that is, misused, to exercise these rights of theirs, and the persons who enabled their violation, as well as persons who collaborated with the security services contrary to the Constitution and laws, that is, cooperated in a manner characteristic for the previous system, as well as prior to the adoption of the 2008 Law, to be subjected to a criminal-legal and other corresponding responsibility for the period after the adoption of the Constitution of the Republic of Macedonia.

This way, certainly, surpasses the established framework of lustration, perceived as a process of purification and appeasement with the past, which is the reason and motive for the adoption of the Law on Determination of an Additional Condition for the Performance of a Public Office, which by its character is temporary law and exhausts its application 10 years after its adoption. Namely, in its determination the Court took as a starting point the fact that the past should be purified, that is, lustrated, and the presence should be enabled and realised, and not lustrated.

8. According to the Court, the solution referred to in Article 8 of the Law, about the publication of the names of the persons who have failed to submit a statement in the “Official Gazette of the Republic of Macedonia”, ex officio by the Commission, without a debate, is a violation of citizens’ dignity, moral, and personal integrity, safeguarded under Article 11 and Article 25 of the Constitution. Namely, the content of the said articles of the Constitution points out the value and inviolability of human personality as the basis and sense of guaranteeing human rights. In that sense, human dignity is not only one of the subjective human rights expressly recognised in the Constitution, but also a fundamental value of the democratic society enjoying universal protection. On the other hand, the solution in the Law according to which the very failure of submitting a statement by the person who is a candidate for certain office or a holder of certain office, without establishing the reasons for the failure to submit the statement and without previously conducting a procedure for the establishment of the facts about his/her cooperation with the secret services, results in a public announcement of the name of that person in a public medium, means unchecked, blanket public stigmatisation of the person as a former secret associate or informer, that is, orderer or user of the information with which the basic freedoms and rights of citizens were violated or restricted out of ideological-political reasons and from which cooperation personal or material advantage was gained, which according to the Court is not allowed, since it exceeds the justification of the stipulation of the special condition for the performance of a public office and means disrespect for the moral integrity and dignity of the citizen. That, on the other hand, does not have an impact on the obligation of the persons who are candidates for certain office or holders of certain office, to submit a written statement with the Commission for the purposes of verifying the facts, which obligation remains to be valid for all, given that if the person fails to submit the statement he/she is considered not to meet the conditions for the performance of a public office, in which case the Commission notifies the organ or the body competent for the initiation of a procedure for discharge of the person from the public office he/she is carrying out.

Starting from what has been noted, the Court found that the public announcement of the names of the persons who fail to submit the statement required has the character of a sanction which may have a repercussions in all spheres of their lives, and not only prohibition from performing a public office, which is the aim of the Law, as a result of which it assessed that Article 8 in the part: “and announces it in the “Official Gazette of the Republic of Macedonia” in the Law is not in agreement with Article 11 and Article 25 of the Constitution.

9. According to the Court, the solution referred to in Article 13 of the Law, according to which the Commission shall, immediately after the conclusion of the procedure for verification of the facts, that is, after the procedure before a competent court becomes effective, publish in the “Official Gazette of the Republic of Macedonia” the first name, father’s name, and last name of the person who cooperated with the state security bodies, is a disproportionate solution exceeding the justification of the stipulation of the special condition for the performance of a public activity and leading to disrespect for citizen’s moral integrity and dignity. Namely, the objective for the prescription of the additional condition for the performance of a public office is to disable the persons who violated human freedoms and rights to be the holders of the democratic development of the state as the holders of public offices, which according to the Court is achieved by establishing the facts and notifying thereof the competent bodies which conduct the procedure for the election and appointment of the persons, that is, the bodies competent for discharging the persons from certain offices. Hence, the publication in a public medium of the data about the persons who are found to have been secret collaborators, orders, or users of the information is a form of public stigmatisation of the same, which has the character of a sanction that may have repercussions in all spheres of their lives, and not only prohibition from performing a public office, which is the objective of this Law.

The statements in the answer of the Assembly of the Republic of Macedonia that the public announcement of the personal data of the persons who are found to have violated human freedoms and rights was a integral part of the measure, thus preventing such violators to be unpunished in the previous period, and the victims unprotected, points to the very conclusion that the public announcement of the data has the character of a sanction, which exceeds the justification of the Law. The indication that the Commission for Verification of the Facts has the exclusive right to publish these data and that such restrictive regime of publication of the names is aimed at discouraging and preventing blanket publications of the names of collaborators, orderers, and users of the information which could damage the moral integrity of persons who, conditionally speaking, were not guilty at all, may not be accepted as a justified argumentation for the public announcement of these data. The aim of the Law is to disable the violators of human rights to be the holders of public offices, which is accomplished by notifying the competent bodies and institutions thereof, and the public announcement of the data about these persons is a disproportionate solution which exceeds the justification for the stipulation of the special condition for the performance of a public activity and leads to disrespect for the citizen’s moral integrity and dignity.

From what has been noted, the Court found that Article 13 of the Law is not in accordance with Article 11 and Article 25 of the Constitution.

10. According to the Court, the stipulation of a possibility in Article 34 of the Law for the obligation to provide a statement, that is, the additional condition for the performance of a public office to apply also to the persons who perform party functions in political parties, are members in associations of citizens and foundations and in religious communities and religious groups, means interference of the state in their work, which exceeds the constitutional guarantees for citizens of freedom of association for the purposes of exercising and protecting their political, economic, social, cultural, and other rights and convictions, that is, means violation of the constitutional determination for separation of the church, religious communities and religious groups from the state. Thereby, this stance is not affected by the fact that the Law does not define compulsoriness for the stipulation of an additional condition for the said offices, but it leaves it to the free choice of the subjects mentioned, since it essentially means interference of the state in the work of the political parties, associations of citizens and foundations, that is, violation of the freedom of association guaranteed in Article 20 of the Constitution, as well as interference of the state in the work of the religious communities and religious groups, which is in contradiction with Amendment VII to the Constitution defining that the Macedonian Orthodox Church, as well as the Islamic Religious Community in Macedonia, the Catholic Church, the Evangelical-Methodist Church, the Jewish Community, and the other religious communities and religious groups are separate from the state and equal before the law.

Article 20 of the Constitution means that the Constitution guarantees freedom of association of the citizens 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 (Article 20, paragraphs 1 and 2 of the Constitution). Starting from what has been noted, political parties, associations of citizens and foundation are free in prescribing conditions for their members, but the state has no jurisdiction to indicate what conditions should be envisaged for these persons, nor to review the correctness of the conditions through organs and bodies it establishes and for which funds are provided for from the Budget of the Republic. Starting from what has been noted, the Court found that Article 34 paragraphs 1 and 2 of the Law are not in accordance with Article 20 of the Constitution.

According to the Court, in the same direction the determination in Article 34 paragraph 3 of the Law should be assessed, under which the religious communities and religious groups may also envisage an additional condition in the sense of this Law in their constitutive and other internal acts and canons for the candidates for holders of the holders of managing offices and members of organs, in which case the Commission for Verification of the Facts would also handle their requests as well. This is also a case of interference of the state in the work of the religious communities and religious groups, which is in contradiction with Amendment VII to the Constitution which defines that the Macedonian Orthodox Church, as well as the Islamic Religious Community in Macedonia, the Catholic Church, the Evangelical-Methodist Church, the Jewish Community, and the other religious communities and religious groups are separate from the state and equal before the law. Namely, the Law on the Legal Position of a Church, Religious Community and Religious Group (“Official Gazette of the Republic of Macedonia”, no.113/07 of 20.09.2007) regulates the foundation and legal status of the church, religious community and religious group, the regulation of a religious service, prayer and religious rite, religious instruction and educational activities, revenues of the church, religious community and religious group, as well as other issues. Pursuant to Article 2 paragraph 2 of this Law, a religious official is a person who is in service of and with his/her religious conviction belongs to a church, religious community and religious group and performs religious-ritual, educational, organisational and humanitarian activities in accordance with the norms of the supreme body of his/her registered church, religious community and religious group, which are in accordance with the Constitution, laws and legal regulations in the Republic of Macedonia. Given what has been noted, it is undoubted that religious communities and religious groups may envisage special conditions in their internal acts for their members, but the state has no competence to indicate what kind of conditions should be envisaged for the religious officials, and even less to review the correctness of the conditions through organs and bodies it creates and for which funds are provided for from the Budget of the Republic. Consequently, the Court found that Article 34 paragraph 3 of the Law is not in agreement with Amendment VII to the Constitution.

The Court took into consideration the fact that the Law does not define compulsoriness for the stipulation of an additional condition, but leaves that as a free choice to the said subjects, if such thing is requested, which is indicated in the answer of the Assembly of the Republic of Macedonia, in the passing of its resolution in which it expressed its doubt about the constitutionality of the said legal solution for the reasons noted previously, but assessed that it may not be accepted as a justified explanation for the existence of the said legal solution. The participation of the political parties, associations of citizens and foundations and religious communities and religious groups in public life, the need for them to cooperate with state bodies and institutions, such as for instance, tax payment and making financial audit, as well as the regulation which allows them to use, under certain conditions, funds from the Budget of the Republic of Macedonia and to be members in corresponding state representation and regulatory bodies, such as for instance in the National Council for Eurointegrations, the Council for Radio Broadcasting Activity and numerous state-protocol events, and the proclamation of the institute of public-private partnership, which is also pointed out in the answer, are not arguments that may impact the constitutional setup of these subjects, as independent and separate from the state, which could influence the Court to change its stance on this issue. According to the Court, the exclusion of the persons carrying out party functions in political parties, being members in associations of citizens and foundations and in religious communities and religious groups from the right to be subject to lustration before the Commission for Verification of the Facts, does not restrict the political parties, associations of citizens and foundations, as well as the religious communities and religious groups, to prescribe special conditions for their members, but it is undoubted that the state does not have competences to be involved in that.

11. On the basis of the aforementioned, the Court decided as in items 1 and 2 of the present Decision.

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