U.br.111/2012

On the basis of Article 110 of the Constitution of the Republic of Macedonia and Article 71 of the Rules of Procedure of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, No. 70/1992), the Constitutional Court of the Republic of Macedonia brought on its session held on 9 April 2014 the following

1. The procedure for constitutionality assessment of Article 1 Paragraphs 1 and 2 in the part

2. This decision shall be published in the “Official Gazette of the Republic of Macedonia”.

3. Aleksandar Petruševski from Skopje, the Helsinki Committee for Human Rights of the Republic of Macedonia and Stamen Filipov, Petar Karajanov and Boris Stojanovski from Skopje have submitted to the Constitutional Court initiatives for constitutionality assessment of the Law mentioned in Point 1 of this Decision, as well as of certain articles from the Law.

In the initiative submitted by Aleksandar Petruševski from Skopje it is stated that the provisions which are being disputed are: Article 4, Article 14, Article 28, Article 29, Article 30 and Article 33, because they were violating Article 9, Article 11, Article 25, Article 91 and Article 106 of the Constitution of the Republic of Macedonia, as well as Article 137 of the Criminal Code and Article 276 of the Law on Criminal Procedure.

According to the initiative, Articles 4 and 14 of the disputed Law were against Article 9 and Article 106 of the Constitution of the Republic of Macedonia, Article 137 of the Criminal Code of the Republic of Macedonia as well as Article 276 of the Law on Criminal Procedure because the Commission for Verification of the Facts did not have the right to investigate and prove which people from Article 1 of the same Law had been violating the human rights and worked as order givers or collaborators of the Directorate for Security and Counter-Intelligence as secret police in the period from 14 November 1991 to 2006, because this was a competence of the Public Prosecution and the Ministry of Interior, which as public organs had the exclusive right to investigate and establish legal consequences instead of the Commission. And in case MoI of RM and the Public Prosecution have such grounded doubts, that the persons mentioned in Article 1 of the abovementioned Law have committed criminal acts after 14 November 1991 in compliance with Article 137 of the Criminal Code of RM and worked against Article 9 of the Constitution of the Republic of Macedonia, criminal charges should have been submitted ex officio against the persons from Article 1 of the Constitution of the Republic of Macedonia. This way the Government of the Republic of Macedonia and the members of the Parliament of the Republic of Macedonia have violated Articles 9 and 106 of the Constitution of the Republic of Macedonia, Article 137 of the Criminal Code of RM and Article 276 of the Law on Criminal Procedure of RM.

According to the findings stated in the initiative, the citizens – victims of the lustration process have been discriminated and the Law has brought them in an unequal position before the Constitution and the laws of the Republic of Macedonia due to the fact that the persons mentioned in Article 1 of the Law were politicians and functionaries and close collaborators of the Directorate for Security and Counter-Intelligence and instead of submitting criminal charges against them in compliance with Article 137 of the Criminal Code of Rm by MoI and the Public Prosecution, they were to be investigated by a commission which is not entitled to conduct investigation for actions that contain the elements of a criminal act according to Article 137 of the Criminal Code of RM, which are illegal acts. Due to this fact, the victims who had opposed positions and political views and opinions from those of government of that time are revealed to all the citizens of the Republic of Macedonia who are equal before the law and the Constitution of RM, by which Article 25 of the Constitution of RM was violated, because collaborators of the Directorate for Security and Counter-Intelligence were entitled the right to dignity, privacy and personal and family life, but not the citizens of RM who had different political views from those of the functionaries and the government also after 1991, which breaches the same article of the Constitution since the privacy of the victims who were banished and followed by the collaborators, persons issuing orders and the Directorate for Security and Counter-intelligence was not protected by the state.

Furthermore, Article 28, Article 29 and Article 33 of the same law were not in compliance with Article 9 of the Constitution of RM because according to those articles, once the Commission investigates and brings a decision with a legal consequence and proves which politician, judge or other person mentioned in Article 1 of the law had violated human rights of Article 9 of the Constitution of RM, and once a decision is brought on who was collaborating with the secret services, the names and surnames of the collaborators will be published on the website of the Commission, together with all the evidence. However, Article 33 of the same law stipulates that the identity, i.e. the data of the collaborator as a person mentioned in Article 1 of the law, will not be published on the website of the Commission for verification of the facts if the same person resigns from the candidature for a certain function or the public power that he/she possesses. The parliamentarians have in this way, by voting in favour of this law, given advantages to the collaborators and persons issuing orders who were politicians with views different from the ones who were victims of these actions and with this act as a law, the parliamentarians have conducted a criminal act stipulated with Article 137 of the Criminal Code of the Republic of Macedonia.

The initiative submitted by the Helsinki Committee for Human Rights of the Republic of Macedonia disputes Article 1 Indent 2, Article 4 Paragraph 1, Article 15 Paragraph 3, Article 27 Paragraph 3, Article 28 Paragraph 2, Article 29 Paragraph 2, Article 31 Paragraphs 2, 3 and 4, Article 33 and Article 36 Paragraph 2 of the Law because they violate Article 8 Paragraph 1 lines 1, 3 and 4, Article 9, Amendment XXI, Article 18, Article 25, Article 50, Article 51 and Article 54 Paragraph 1 of the Constitution.

Namely, the initiative points out that Articles 1 Paragraph 2, Article 4 Paragraph 3 and Article 18 Paragraphs 3 and 4 of the Law stipulate that the lustration will take place also after 17 November 1991, or after the day  the current Constitution of RM entered into force, to the day of commencement of application of the Law on Free Access to Public Information (“Official Gazette of the Republic of Macedonia” No. 13/2006), or up to 1 September 2006. The Constitutional Court of the Republic Macedonia in its Decision U.No. 42/2008 and U.No. 77/2008 (“Official Gazette of the Republic of Macedonia” No. 45/2010) and Decision U.No. 52/2011 and U.No. 76/2011 (“Official Gazette of the Republic of Macedonia”  No. 48/2012), both of them final and executive, and with regards to the Law on the Establishment of an Additional Condition for Performance of Public Office (“Official Gazette of the Republic of Macedonia” No. 14/2008, 64/2009 and 24/2011) stated that the conduction of the lustration process after the date the current Constitution entered into force has no constitutional validity.

The abovementioned decisions of the Constitutional Court of RM unequivocally establish that the conduction of the lustration process after 17 November 1991 will negate the values and institutions established in the Republic of Macedonia after the adoption of the current Constitution. In the opposite case, such process would be seen as a modern alternative of the existing legal system and institutions constructed with the current Constitution, by which the historical dimension and justification of the Law on the Establishment of an Additional Condition for Performance of Public Office would be lost. According to the  Constitutional Court of RM, there is no legal obstacle for application of the current legal regime established by the laws for initiating a procedure to establish the criminal and other suitable form of responsibility for the people who have collaborated with the security services, as well as for the realisation of the rights of the people whose rights were violated in the period after the adoption of the current Constitution.

The abovementioned Decisions of the Constitutional Court of the Republic of Macedonia abolish the provisions that stipulate the timeframe of the Law on the Establishment of an Additional Condition for Performance of Public Office, which is, by its contents and area of regulation, very similar to the Law which is subject of this initiative. The similarity of these two laws with a different name does not change the essence of the disputed provisions because of the identical legal area that they regulate, and that is the establishment of a timeframe connected to the lustration process. Taking this into consideration, and in order to preserve the consistency and analogy of the work of the Constitutional Court of the Republic of Macedonia, it is proposed that the mentioned provisions are proclaimed unconstitutional and that consequently they are abolished because they are contrary to the ground values of the constitutional order and th e principle of rule of law stipulated with Article 8 Indent 3 of the Constitution of the Republic of Macedonia.

According to the findings of the abovementioned initiative, Article 15 Paragraph 3, Article 27 Paragraph 3, Article 29 Paragraph 2, Article 31 Paragraphs 2, 3 and 4 and Article 33 of the Law stipulate that once the persons to whom the law refers have been investigated, the Commission for verification of the facts will run a Registry and publish on its website their names and documents that were used as evidence together with the decision that establishes their collaboration with the state security bodies. The publication of the decision, the names and the documents was conducted automatically, without allowing some time space for an eventual court proceeding.

With the Decisions U.No. 42/2008 and U.No. 77/2008 (“Official Gazette of the Republic of Macedonia” NO. 45/2010), and with regards to the Law on the Establishment of an Additional Condition for Performance of a Public Office, the Constitutional Court of the Republic of Macedonia established that the publication of the names of persons who collaborated with the state security bodies in the “Official Gazette of the Republic of Macedonia”  after the validity of the procedure in front of an authorised court is a violation of the dignity, the moral and personal integrity of the citizen.

The same decision establishes that the public revealing of the names is an unverified, ad-hoc and public stigmatisation. According to the Constitutional Court of the Republic of Macedonia, such publication is not allowed, because it exceeds the justification of the establishment of an additional condition for performance of public office. Furthermore, in its Decision the Constitutional Court of RM points out that the publication of the names has the elements of a sanction, which can have consequences in all spheres of their lives, and not only in the prohibition to perform a public office, which is the basic goal of the Law.

On the other side, unlike the Law on Establishment of an Additional Condition for Performance of a Public Office, the disputed provisions of the Law which is the subject of this initiative, envisage publication of the decisions, names and documents on a website, which, unlike the Official Gazette of RM, is available free of charge. Additionally, the provisions of the current law envisage that the publication is conducted even before the decisions become final, that is before a decision of the authorised court which would confirm their authenticity and legality.

According to the initiative, the provisions designed in this manner are opposite Article 8 (rule of law and division of powers into legislative, executive and judicial), Article 9 (equality of the citizens before the Constitution), Amendment XXI (legal protection against individual legal acts), Article 18 (safety and secrecy of the personal data and protection from violation of the personal integrity), Article 25 (respect and protection of the privacy of personal and family life, dignity and reputation), Article 50 (court protection of the legality of the individual acts of the state administration) and Article 51 (limitation of the freedoms and rights of the citizens only in cases stipulated with the Constittuion) of the Constitution of the Republic of Macedonia.

Namely, the rule of law and division of powers to legislative, executive and judicial stipulates that all legal acts are produced by one of the power holders, in compliance with the provisions of the Constitution. Nobody could not and was not allowed to limit the rights of the citizens in an ad hoc manner, without previously fulfilling the conditions stipulated with the Constitution. In this concrete case, that would mean that the Parliament as the legislative power does not have the authority to limit the rights or the protection of those rights through an executive organ such as the Commission, without envisaging legal protection from an authorised court as a holder of the judicial power.

According to the initiative, in a case where a certain group of citizens did not have the possibility to receive court protection is put in an unequal position before the law compared to the other citizens, which is contrary to the fundamental values of a democratic society. The lack of legal protection against the individual legal acts undermines the rule of law and contributes not only towards inequality among the citizens, but also towards arbitrary interference of the state in the way the citizens exercise their rights and freedoms. The lack of security and secrecy of the personal data implies a direct violation of the citizens’ personal integrity. According to the findings stated in the initiative, instead of promoting and protecting the respect and protection of the privacy of the personal and family life, dignity and reputation, in this concrete case the state undermined and limited the basic rights of the citizens and their closest surrounding.

With regards to the Article 36 Paragraph 2 of the Law, the initiative states that it is contrary to Article 8 (rule of law and division of powers to legislative, executive and judicial), Amendment XXI (legal protection against individual legal acts) and Article 50 (court protection of the legality of individual acts of the state administration). Through such a division the Commission is granted both executive and judicial power, which is in direct collision with the Constitution of the Republic of Macedonia. The lack of legal protection by an authorised court against the decisions of individual legal acts of the state administration (in this case the Commission) is, according to the initiative, illegal and unacceptable according to the constitutional order of RM.

According to the submitters of the third initiative (Stamen Filipov, Petar Karajanov and Boris Stojanoski), which disputes the Law as a whole, and especially Article 1 Indent 1, Indent 2 in the part: “to the day of commencement of application of the Law on Free Access to Public Information”, Article 3 Paragraph 1 Point 25, Article 4 Paragraph 1 in the parts: “to the day of commencement of application of the Law on Free Access to Public Information”, Article 18 Paragraphs 3 and 4 in the parts: “to the day of commencement of application of the Law on Free Access to Public Information” and Article 40, because they are unconstitutional due to the wide registry of people affected with the Law for the Establishment of a Condition for Restriction of Performance of Public Office, Access to Documents and Disclosure of the Collaboration with the State Security Bodies, which comprises of all current state, social, political and civil subjects and the general validity for the persons covered with Article 4 of the Law, which stretches on a period of several decades from the adoption of the ASNOM Declaration for the basic rights of the citizen of a democratic Macedonia, at the first session of ASNOM on 2 August 1944, to the day of the commencement of application of the Law on Free Access to Public Information (date and year are not stated), exceeds the framework of any type of lustration of collaborators with the civilian and military bodies of the state security, with consequences over the basic rights and freedoms of the citizens.

According to the Preamble of the Constitution of the Republic of Macedonia, the citizens of the Republic of Macedonia, the Macedonian people, as well as citizens living within its borders who are part of the Albanian people, the Turkish people, the Vlach people, the Serbian people, the Romany people, the Bosniak people and others taking responsibility for the present and future of their fatherland, aware of and grateful to their predecessors for their sacrifice and dedication in their endeavors and struggle to create an independent and sovereign state of Macedonia, and responsible to future generations to preserve and develop everything that is valuable from the rich cultural inheritance and coexistence within Macedonia, equal in rights and obligations towards the common good – the Republic of Macedonia – in accordance with the tradition of the Krushevo Republic and the decisions of the Antifascist People’s Liberation Assembly of Macedonia, and the Referendum of September 8, 1991, have decided to establish the Republic of Macedonia as an independent, sovereign state, with the intention of establishing and consolidating the rule of law, guaranteeing human rights and civil liberties, providing peace and coexistence, social justice, economic well-being and prosperity in the life of the individual and the community, and, in this regard, through their representatives in the Assembly of the Republic of Macedonia, elected in free and democratic elections, adopted this Constitution.

However, the disputed Law does not secure the accomplishment of the ground value of the constitutional order – the rule of law and does not secure peace and coexistence, social justice, economic well-being and prosperity in the life of the individual and the community. On the contrary, all these values were breeched with this Law, to the detriment of the guaranteed human rights and civil liberties. It is not necessary nor justified to use measures and sources which were rejected in the recent history in order to efficiently protect the internal order and security of the country.

According to the initiative, the disputed Law was entirely against the Preamble of the Constitution fo the Republic of Macedonia from 17 November 1991 and the ground values of the constitutional order of the Republic of Macedonia: the basic human rights and freedoms recognised by the international law and stipulated with the Constitution, the rule of law and the division of the state powers to legislative, executive and judicial as mentioned in Article 8 Paragraph 1 Lines 1, 3 and 4, as well as the Articles 9, 11 Paragraph 1, 13 Paragraph 1, 14 Paragraph 1, 23, 25 and 51 of the Constitution of the Republic of Macedonia.

The submitters of the initiative point out that according to the basic principle of Article 1 Indent 2 of the Law, this Law establishes: the procedure for access, disclosure, and use of the documents of the state security of the Republic of Macedonia and the civilian and military bodies of the state security of the SFRY in the period from the adoption of the Declaration of the Anti-Fascist Assembly of the National Liberation of Macedonia – ASNOM on the basic rights of the citizen of the Democratic Macedonia at the First Assembly of ASNOM held on 2 August 1944 to the day of commencement of application of the Law on Free Access to Public Information,

The disputed legal part of this indent and the rest of the text of the disputed Law are not in conformity with Article 8 Paragraph 1 Indents 1,3 and 4, Article 9, Article 23, Article 51 and especially Article 122 Paragraphs 1 and 3 of the Constitution, as well as with the decisions of the Constitutional Court of the Republic of Macedonia:

– U.No. 42/2008 and U.No. 77/2008 dated 24.03.2010, which repealed Article 2 Paragraph 1 in the part: “to the day of commencement  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 the Establishment of an Additional Condition for the Performance of a Public Office and U.No. 52/2011 and U.No. 76/2011 dated 28.03.2012, which annulled Article 1, in te parts: “as well as the person who was holder of a public office and who is not deceased”, and “as well as the person who was holder of public office”, Article 2 Paragraph 1, Article 5 Point 29 in the part: “and organisations”, Article 6, Paragraph 3, Article 7 in the part: “and the persons who were holders of public offices and who are not deceased”, Article 10-a, Article 10-b and Article 12 Paragraph 3, Article 30 Paragraph 1, Article 32 and Article 35-a Indent 3 of the Law on the Establishment of an Additional Condition for the Performance of a Public Office and Article 25 of the Law on Changes and Amendments to the Law on the Establishment of an Additional Condition for the Performance of a Public Office.

According to Article 112 of the Constitution, the Constitutional Court will repeal or invalidate a law if it determines that the law does not conform to the Constitution. The decisions of the Constitutional Court are final and executive. The abovementioned constitutional provisions and the wholeness of the constitutional provisions that regard the system of protection of constitutionality and legality imply that the decisions of the Constitutional Court are obligatory for all, final and executive. Taken into consideration that the Constitutional Court of the Republic of Macedonia has decided by merit in this case, and its decisions are final, executive and non-changeable, the proposal is to invalidate the disputed Law as a whole, because it once again stipulates the same or very similar provisions, which have already been repaled with the abovementioned decisions of the Constitutional Court.

The expansion of the range of the lustration process after the adoption fo the Constitution of the Republic of Macedonia on persons who were former functionaries, the obligatory lustration of the members of the political parties, non-governmental organisations, religious communities and the journalists are provisions from the former Law on Lustration, which the Constitutional Court found unconstitutional and repealed them as such. The repeated regulation of these provisions with the disputed Law is not in conformity with the Constitution of the Republic of Macedonia and the abovementioned decisions of the Constitutional Court, which is at the same time a criminal act of refusing to execute a court decision.

According to the submitters of the initiative, the disputed Law cannot be implemented up to the day of commencement of the application of the Law on Free Access to Public Information, but exclusively and only up to the date of the adoption of the Constitution of the Republic of Macedonia, also in compliance with the two abovementioned decisions of the Constitutional Court. However, according to the disputed Law, the lustration is also covering the period after 1991, which was contrary to the abovementioned decisions of the Constitutional Court of the Republic of Macedonia and which also violates the rule of law, as a fundamental value of the constitutional order of the Republic of Macedonia stipulated with Article 8 Paragraph 1 Indent 3 of the Constitution.

The Lustration is a process of dealing with the past in order to mark and social and political system. This means that it should and could refer only to the period when the persons had the possibility to violate human rights and misuse that for their personal benefit, due to the non-existence of constitutional and legal possibilities for sanctioning such behaviour. According to this, lustration could not and should not refer to the period when the state has built a different social and political system, based on human rights and their protection.

The initiative also states that the legal solution in Article 3 Paragraph 1 Indent 25 interferes the private sector and market economy and provides avoidance of criminal charges in case of misuses conducted in the period of privatisation. The reason for expanding the Law to the members of the boader family of the persons who acquired ownership of over 5% capital in the socially owned enterprises with is incomprehensible, since those persons were neither perpetrators nor holders of public offices.

Apart from that, this could be established only and solely by the judicial power, and not the Commission for the Verification of the Facts. Because according to Article 8 Paragraph 1 Indents 3 and 4 of the Constitution, the rule of law and the division of powers to legislative, executive and judicial are the ground values of the constitutional order of the Republic of Macedonia, and according to Article 51 Paragraph 1 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, while according to Paragraph 2 of the same Article, everyone is obliged to respect the Constitution and the laws. According to Amendment 25 Point 1 of the Constitution, the judiciary power is exercised by the courts, which are autonomous and independent. Courts judge on the basis of the Constitution and laws and international agreements ratified in accordance with the Constitution.

The abovementioned constitutional provisions imply that the Constitution clearly and precisely defines and regulates the holders of the legislative, executive and judicial power, and clearly makes the difference in the division of powers, not allowing interference of one into the other power, and setting up the power as a structure of independent relatively divided powers whose status, competencies and relations are stipulated and guaranteed with the Constitution. According to the initiative, having in mind the abovementioned constitutional provisions in correlation with the disputed legal provision, the competence of the Commission for the Verification of Facts to establish which persons and their families have acquired 5%capital in socially-owned enterprises in compliance with the Law for Transformation of Socially Owned Enterprises, has no constitutional ground.

Due to those reasons, the disputed legal provision was not in conformity with the groudn values of the constitutional order of the Republic of Macedonia stipulated with Article 8 Paragraph 1 Indents 1, 3, 4, 6 and 7 and Article 23, Amendment 25, Article 30, Article 51 and Article 55 of the Constitution of the Republic of Macedonia.

In the explanation of the justification of this part of the initiative, the submitters point out the Decision of the Constitutional Court of the Republic of Macedonia U.No. 209/2010 dated 20.04.2011, which repealed Article 7 Paragraph 2 Indent 2 in the part: “his/her children and spouse” and Indent 3 in the part: “his/her children, spouse, parents and other persons with whom he/she live in the same family” from the Decree for security of users of classified information.

According to the initiative, the disputed Article 40 of the Law had a retroactive effect which was not in conformity with Article 52 Paragraph 4 of the Constitution. It also has effect that is more unfavourable over the citizens of the Republic of Macedonia.

Due to the abovementioned, it is proposed that the Court initiates a procedure to assess the constitutionality of the Law on the Establishment of a Condition for Restriction on Performance of a Public Office, Access to Documents, and Disclosure of the Collaboration with the State Security Bodies as a whole, and especially Article 1 Indent 1, Indent 2 in the part: “to the day of commencement of application of the Law on Free Access to Public Information”, Article 3 Paragraph 1 Point 25, Article 4 Paragraph 1 in the parts: “to the day of commencement of application of the Law on Free Access to Public Information”, Article 18 Paragraphs 3 and 4 in the parts: “to the day of commencement of application of the Law on Free Access to Public Information” and Article 40. It is proposed that the Court invalidates the abovementioned provisions as noncompliant with the Constitution of the Republic of Macedonia.

At the same time it is proposed that the Court, in conformity with Article 27 of the Rules of Procedure of the Constitutional Court of the Republic of Macedonia, takes a resolution for cessation of the execution of the acts and activities undertaken on the basis of the disputed law, because their execution might lead to consequences that could not be easily eliminated.

4. The disputed Law is adopted at a session of the Parliament of the Republic of Macedonia which took place on 20 June 2012, and it was published in the “Official Gazette of the Republic of Macedonia” No. 86/2012.

The Law contains VIII Chapters:
–     Chapter I: General Provisions
–     Chapter II: Commission on Verification of the Facts
–     Chapter III: Obligation of the State Security Bodies and the Other State Bodies
–     Chapter IV: Obligations Of The Citizens And The Institutions
–     Chapter V: Procedure for Establishment and Disclosure of Collaboration with the State Security Bodies
–     Chapter VI: Access to Documents of the State Security Bodies
–     Chapter VII: Penal Provisions
–     Chapter VIII: Transitional and Final Provisions

Article 1 Paragraph 1 Indents 1 and 2 of the Law stipulate that this law regulate:

– the condition that restricts the performance of a public office,
– the procedure for access, disclosure, and use of the documents of the state security of the Republic of Macedonia and the civilian and military bodies of the state security of the SFRY in the period from the adoption of the Declaration of the Anti-Fascist Assembly of the National Liberation of Macedonia – ASNOM on the basic rights of the citizen of the Democratic Macedonia at the First Assembly of ASNOM held on 2 August 1944 to the day of commencement of application of the Law on Free Access to Public Information (disputed part).

Article 3 Paragraph 1 Point 25 of the Law stipulate that this law also covers “persons and persons related to them that have acquired a capital of over 5% in the socially owned enterprises, in accordance with the Law on Transformation of Socially Owned Enterprises. Related persons shall mean natural persons that are related by marriage or adoption; children and parents, brothers and sisters, step-brothers and step-sisters, grandmothers, grandfathers and grandchildren; related by blood to second degree in any other manner; have lived continuously in a community for five years as a parent – guardian and a child, step-mother or step-father and a step-son and step-daughter, a daughter-in-law, son-in-law and parents of the spouses” (disputed part).

According to Article 4 of the Law:

(1) The person covered by this Law for whom the Commission establishes that in the period from the adoption of the Declaration of the Anti-Fascist Assembly of the National Liberation of Macedonia – ASNOM on the basic rights of the citizen of the Democratic Macedonia at the First Assembly of ASNOM held on 2 August 1944 to the day of commencement of application of the Law on Free Access to Public Information has been registered in the files of the state security bodies of the Republic of Macedonia and the civilian and military state security bodies of the SFRY as an secret collaborator, operational contact or an secret informant in the course of operative gathering of information and data (hereinafter: information), subject to processing, keeping and use by the state security bodies in a form of automated or manual collections of data and files, created and kept for specific persons, that have been used for violation or restriction of the basic rights and freedoms of the citizens out of political or ideological reasons during the communist regime and out of political, ideological and party political reasons as of 17 November 1991 to the day of commencement of application of the Law on Free Access to Public Information, shall fulfil the condition for restriction on nomination or performance of a public office (disputed part).

In conformity with Article 14 of the Law, the Commission has the following competencies:
– gathering, researching, analyzing and assessing the documents that contain information on the activities in accordance with Article 4 of this Law,
– disclosing the names of the persons, candidates for holders of a public office or public power, former and present holders of public offices or persons that have been formerly and are presently executing a public activity or public powers, whose collaboration with the state security bodies is established,
– providing access to natural persons to the information gathered about them, in terms of this Law, upon their request, request of their relatives in second degree in horizontal line, including the persons they have authorized by a notary verified power of attorney,
– issuing documents on collaboration of natural persons with the state security bodies, in terms of this Law,
– initiating a procedure upon an initiative of third persons,
– informing the competent bodies about future actions,
– adopting the Rules of Procedure,
– preparing a six-month report on its work and submitting it to the Assembly of the Republic of Macedonia,
– cooperating with similar international institutions,
– keeping a register in accordance with Article 15 of this Law, and
– carrying out other activities determined by this Law.

Article 15 Paragraph 3 of the Law stipulates that the Registry from Paragraph (1) of this Article is published on the website of the Commission.

According to Article 18 Paragraphs 3 and 4 of ther Law, State security bodies to which the cooperation stipulated in Article 4 of this Law refers to shall be considered the Administration for Security and Counterintelligence in the Ministry of Interior, the Military Security and Intelligence Service in the Ministry of Defense, and the Intelligence Agency and their legal predecessors in the Republic of Macedonia and the former SFRY, in the period between the adoption of the Declaration of the Anti-Fascist Assembly of the National Liberation of Macedonia – ASNOM on the basic rights of the citizen of the Democratic Macedonia at the First Assembly of ASNOM held on 2 August 1944 and the day of commencement of application of the Law on Free Access to Public Information (disputed part).

Cooperation, in terms of this Law, shall mean conscious, secret, organized and continuous cooperation and activity, determined on the basis of a document, with the state security bodies in the capacity of a secret collaborator, operational contact or secret informant (hereinafter: secret collaborator) in the course of operative gathering of information that has been subject to processing, keeping and use by the state security bodies in a form of automated or manual collections of data and files, opened and kept for particular persons, by which the basic rights and freedoms of the citizens have been infringed or limited out of political or ideological reasons in the communist regime and out of political, ideological and party political reasons as of 17 November 1991 to the day of commencement of application of the Law on Free Access to Public Information and on the basis of which material benefit or privileges to get employed or advance in the service have been gained.

In compliance with Article 27 Paragraph 3 of the Law, the results of the examination of the persons shall also be published on the website of the Commission.

Article 28 of the Law stipulates that:

(1) The person holder of a public office or public power for whom the Commission, upon the completion of the examination, establishes that he/she has collaborated with the state security bodies in the period set out by Article 4 of this Law, shall fulfil the condition on the basis of which his/her right to perform a public office or public power shall be restricted during the period of application of this Law.

(2) The Commission shall immediately, and within a maximum period of three days as of the day of completion of the procedure for examination and the notification of the person referred to in paragraph (1) of this Article on existence of a proof for collaboration with the state security bodies, publish the decision establishing collaboration with the state security bodies on the website of the Commission and shall deliver it to the Assembly of the Republic of Macedonia, the Government of the Republic of Macedonia, the State Election Commission, and the organ or the body in charge of the contest or nomination of the person holder of a public office or public powers, for the purpose of initiating a dismissal procedure.

(3) The Commission shall adopt the decision establishing collaboration with the state security bodies within a period not longer than 15 days as of the day of receipt of the data from the bodies referred to in Article 20 of this Law.

Article 29 of the Law stipulates that:

(1) The person who has been a holder of a public office or public power, for whom the Commission, upon completion of the examination, has established collaboration with the state security bodies in the period set out in Article 4 of this Law, shall be restricted the right to hold a public office or public power during the period of application of this Law.

(2) The Commission shall immediately, and within a maximum period of three days as of the day of completion of the procedure for examination and the notification of the person referred to in paragraph (1) of this Article on the existence of a proof for collaboration with the state security bodies publish the decision establishing collaboration with the state security bodies on the website of the Commission and shall deliver it to the Assembly of the Republic of Macedonia, the Government of the Republic of Macedonia and the State Election Commission for the person who has been a holder of a public office or public powers, and who has collaborated with the state security bodies.

(3) The Commission shall adopt the decision establishing collaboration with the state security bodies within a period which is not longer than 15 days as of the day of receipt of the data from the bodies referred to in Article 20 of this Law.

According to Article 30 of the same Law:

(1) The Commission shall establish collaboration with the state security bodies upon a submitted written request by:
1) a broadcasting trade company, not-for-profit broadcasting institution, which hold a license for carrying out a broadcasting activity, and print media, with regard to the founders, holders of managerial offices and their employed journalists;
2) political parties with regard to the presidents, vice-presidents, members of the organs and bodies, and their members;
3) religious communities and religious groups with regard to their heads, members in the organs and bodies; and
4) organizations of public nature registered in accordance with the law, with regard to their founders, holders of managerial offices, and members in the organs and bodies.
(2) The request referred to in paragraph (1) of this Article shall be signed by the representatives of the legal entities referred to in paragraph (1) of this Article. A written consent by the person who shall be subjected to examination by the Commission shall be attached to the request.
(3) The results of the examination shall be delivered in a written form to the entity requesting the information referred to in paragraph (1) of this Article within a period of 15 days as of the day of submission of the request. The person who has been subjected to examination shall be informed if there is a proof for collaboration with the state security bodies, and the decision shall be published on the website of the Commission within a period which is not longer than three days as of the day of submission of the information about the results of the conducted examination.

Article 31, Paragraphs 2, 3 and 4 of the Law stipulate that:
(2) The personal data of the persons collaborators with the state security bodies shall not constitute personal data, in terms of this Law, for protection of personal data.
(3) The person subjected to examination shall be informed about the results of the conducted examination by the Commission. The decision referred to in paragraph (1) of this Article shall be published on the website of the Commission within a period which is not longer than three days as of the day of submission of the notification about the results of the conducted examination.
(4) Documents that have been used as a proof for establishing collaboration of the person with the state security bodies shall be published on the website of the Commission, together with the decision referred to in paragraph (1) of this Article.
In conformity with Article 33 of the Law:
(1) The data about the persons shall not be published only in cases where:
1) the person is deceased and
2) the person withdraws his/her candidacy for a public office or public power or submits a resignation as a holder of a public office or public power within a period of three days prior to the written notification about the results of the conducted examination.
(2) The provision referred to in paragraph (1) of this Article shall not apply to persons defined in the lists of candidates for holders of public offices in accordance with the Electoral Code. If collaboration with the state security bodies is established, the name of that person shall be mandatorily published on the website of the Commission and shall be delivered to the State Election Commission.

Article 36 Paragraph 2 of this Law stipulates that In order a document not to be disclosed or published, the relevant security service shall submit a proposal to the Commission. The Commission shall adopt a decision which is final and there is no right of an appeal.

According to Article 40 of the Law the procedures for establishment of collaboration with the state security bodies that have commenced in accordance with the Law on the Establishment of Additional Condition for Performance of Public Office (“Official Gazette of the Republic of Macedonia” Nos. 14/2008, 64/2009 and 24/11) shall end in accordance with the provisions of this Law.

5. In conformity with Article 8 Paragraph 1 Indents 1, 3 and 4 of the Constitutionm, the basic freedoms and rights of the individual and citizen, recognized in international law and set down in the Constitution,  the rule of law and the division of state powers into legislative, executive and judicial represent ground values of the constitutional order of the Republic of Macedonia.

According to Article 9 of the Constitution, the citizens of the Republic of Macedonia 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. The citizens are equal before the Constitution and law.

According to Article 11 of the Constitution, the physical and moral integrity of the citizen is irrevocable.

Article 18 of the Constitution stipulates that the security and confidentiality of personal information are guaranteed. Citizens are guaranteed protection from any violation of their personal integrity deriving from the registration of personal information through data processing.

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

Amendment XXI of the Constitution, which replaces Article 15 of the Constitution, the right to appeal against verdicts in first instance proceedings by a court is guaranteed. The right to appeal or any other legal protection against individual legal acts adopted in first instance proceedings by an administration body, organization and any other institution carrying public mandates shall be determined by law.

According to Article 25 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 respect the Constitution and the laws.

In terms of Article 54 Paragraph 1 of the Constitution, the freedoms and rights of the individual and citizen can be restricted only in cases determined by the Constitution.

The Parliament of the Republic of Macedonia, in conformity with its competencies established by Article 68 of the Constitution, regulates the areas of social life by law. In this direction the Parliament adopted the Law on the Establishment of a Condition for Restriction of Performance of Public Office , Access to Documents and Disclosure of the Collaboration with the State Security Bodies which regulates the condition that restricts the performance of a public office,

– the procedure for access, disclosure, and use of the documents of the state security of the Republic of Macedonia and the civilian and military bodies of the state security of the SFRY in the period from the adoption of the Declaration of the Anti-Fascist Assembly of the National Liberation of Macedonia – ASNOM on the basic rights of the citizen of the Democratic Macedonia at the First Assembly of ASNOM held on 2 August 1944 to the day of commencement of application of the Law on Free Access to Public Information, the disclosure of the collaboration of persons – candidates for holders of a public office or public power 1 , former and present holders of public offices, or persons that have been formerly or are presently executing a public activity or public powers – with the bodies of the state security, and the activities that fall within the competence of the Commission on Verification of the Facts (Article 1).

Starting from the fact that the performance of the legislative function is a constitutional competence of the legislative power, the Court assessed that the legislator has a constitutional ground to regulate by law a certain issue of the social sphere for which it found it necessary and justified to be regulated separately, that is to establish normative conditions also for the perpetrators of human rights violations from the former political system that will restrict them from performing public office in a completely different democratic system which is regulated with Article 1 Indent 1 of the Law, and it has therefore first of all adopted the Law on the Establishment of an Additional Condition for Performance of Public Office (“Official Gazette of the Republic of Macedonia” Nos. 14/2008, 64/2009 and 24/2011), and then the now disputed Law which in Article 41 regulates that with the day of commencement of application of this Law (the eighth day of the day of publication 17 July 2012), the previously mentioned law will seize to be valid. Such conclusion actually results also from the position of the Constitutional Law stated in the previous two decisions in which it is clearly stated that lustration as a process is not considered unconstitutional.

Namely, the Constitution of the Republic of Macedonia is 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 to 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 to XXX (“Official Gazette of the Republic of Macedonia No. 107/2005), Amendment XXXI (“Official Gazette of the Republic of Macedonia No. 3/2009 and 13/2009 – correction) and Amendment XXXII (“Official Gazette of the Republic of Macedonia No. 49/2011).

According to the Preamble of the Constitution, the citizens of the Republic of Macedonia, the Macedonian people, as well as citizens living within its borders who are part of the Albanian people, the Turkish people, the Vlach people, the Serbian people, the Romany people, the Bosniak people and others taking responsibility for the present and future of their fatherland, aware of and grateful to their predecessors for their sacrifice and dedication in their endeavors and struggle to create an independent and sovereign state of Macedonia, and responsible to future generations to preserve and develop everything that is valuable from the rich cultural inheritance and coexistence within Macedonia, equal in rights and obligations towards the common good – the Republic of Macedonia – in accordance with the tradition of the Krushevo Republic and the decisions of the Antifascist People’s Liberation Assembly of Macedonia, and the Referendum of September 8, 1991, have decided to establish the Republic of Macedonia as an independent, sovereign state, with the intention of establishing and consolidating the rule of law, guaranteeing human rights and civil liberties, providing peace and coexistence, social justice, economic well-being and prosperity in the life of the individual and the community, and, in this regard, through their representatives in the Assembly of the Republic of Macedonia, elected in free and democratic elections, adopted this Constitution.

Comparing the issues regulated with the current Law, the Court finds the lustration process a process to clarify and come to terms with the past, which is the reason and the motive behind the adoption of this law, which is temporary by its character and stipulates that it shall apply ten years as of the day of election of the members of the Commission on Verification of the Facts in accordance with the Law on the Establishment of Additional Condition for Performance of Public Office (Article 42).

The submitted initiatives generally dispute the Law as a whole, as well as certain articles of the law which absolve issues regarding the timeframe of the lustration process, the persons to whom this law shall apply, the disclosure of the decision which establishes the collaboration with the state security bodies on the website of the Commission for Verification of the Facts, before it becomes final, as well as the obligation of the members of the religious communities and associations and foundations to give such statements.

Analysing the contents of the law and its separately disputed provisions, vis-á-vis the constitutional norms the initiative refers to, the Constitutional Court clearly and unambiguously established that the mentioned findings are groundless, due to which the disputed law as a whole and its separate provisions cannot be brought in doubt with regards to the Constitution of the Republic of Macedonia.

According to the Court, the disputed law does not contain provisions that violate or limit the basic freedoms and rights of citizens, but it is based exactly on the principles of rule of law, legal safety and protection of the citizens’ freedoms and rights.

The Law provisions that regulate the issue regarding the timeframe for execution of the procedure for access, disclosure and use of the documents of the state security of the Republic of Macedonia and the civilian and military bodies of the SFRY, that is the investigation of the requested data in order to establish whether the persons who are candidates for holders of public office or public power have co-operated with the state security bodies, are according to the Court legally justified and cannot be brought under doubt with regards to the constitutional provisions as mentioned in the initiatives.

The Court decided that in compliance with the constitutional provisions, it is the legislator’s right to create and establish the legal text with regards to the timeframe of the lustration process, and it is therefore the legislator’s assessment that the law should be valid up to the moment of the adoption of the Law on Free Access to Public Information (2006). The reason is that it cannot be accepted that the change of the system has been conducted immediately after the adoption of the Constitution in 1991, or that the democracy took over immediately in the Republic of Macedonia, out of the objective reason that it is necessary for a certain period of time to pass by before the changes of the system begin to function. Namely, according to the Court, the reforms in the judicial system and the other segments were not conducted with the adoption of the Constitution of the Republic of Macedonia in 1991, and as a consequence the Constitution was a subject of many amendments and changes which took place for over a decade and more after the adoption of the Constitution, which also points out to the long-term process of harmonisation of the structure of society, as well as the process of democratisation itself.

The changes of such character are specifically addressed in the resolution of the Parliamentary Assembly of the Council of Europe in Resolution 1096 from 1996, which explicitly contains the measures for dismantling the heritage of former communist totalitarian systems and Resolution 1481 from 2006 on the need for international condemnation of the totalitarian communist regimes.

Namely, those are the sources of the European standards in the area of lustration, which the Republic of Macedonia is obliged to respect and implement. Resolution 1096 actually points out as reference the directions that ensure compliance of the lustration laws and similar administrative measures with the conditions of a country based foremost on the principle of rule of law as a ground value of the constitutional order.

In compliance with this, the process of acting of the cadres which were violating the freedoms and rights of the citizens for ideological reasons in the one-party political system by co-operating with the state security bodies has continued after 1991, and it is certain that one part of them have continued such actions also in the new social and political system. This is because the process has not stopped immediately, but changed along with the reforms and the democratisation of the state. Therefore, the period to which the disputed Law refers to  is also the period after 1991, that is to the day of adoption of the Law on Free Access to Public Information in 2006.

Namely, after the adoption of the new Constitution, there was no immediate implementation of the reforms in the system of working of the state institutions and other public legal institutions and organisations where apart from the persons who worked professionally and honestly in the previous social and political system, there were also part of the persons with the bargain of ideological and political acting directed against the “ideologically incompetent persons in the country” both in the one-party and the pluralist system.

According to the Court’s  finding, the claim stated in the initiative that after the period from 1991 with the introduction of the democratic structure of society, the collaborators of the state prosecuting bodies, by which they violated certain human rights, can only be punished through a court procedure. Namely, the legislator did not use by accident the date of adoption of the Law on Free Access to Public Information (2006) because this law secures public and open way of working of the information owners, and enables the individuals and legal entities to exercise the right to free access to public information. Despite the fact that it secures public and open way of working of the information owners, at the same time it allows the individuals and legal entities to exercise a new right that can be of core importance in many situations of the human life. With this Law, the Republic of Macedonia makes a step forward to democratisation of the society, the openness of the institutions towards the citizens, the increase of the control of the public over the work of the state bodies and all holders of public powers, which should as a final result lead to increase of the trust of the citizens in the holders of public office. Therefore, the Court’s conclusion that this Law is one of a kind and character due to which it cannot  be compared to any other law from the current laws in the existing legal system, is logical.

According to the Court, this enables transparent and efficient implementation of the lustration process, which is an exclusive competence of the legislator, or the lustration process regulation is a competence of the parliament because it establishes the maturity of the society and the moment democracy can defend itself. Also, the legislator makes the assessment about the period the lustration should take place and oppose to the totalitarian regime.

According to the Court, during the construction of the legal opinion regarding the mentioned legal issue,  it is necessary to also mention the practice of the Court of Lithuania and Latvia, which see the Lustration Law not as a law for protection of the human rights, but as a law that limits the human rights. However, the limitation of the human rights is in the direction of accomplishing other higher public interest, a legitimate goal, and that is the protection of democracy, protection of the postulates the state is based on, and that is protection of the constitutional principles stipulated with Article 8 of the Constitution of the Republic of Macedonia.

The establishment of this condition for restriction of performance of a public office aims at protecting the basic freedoms and rights of the citizens from being violated due to ideological or political reasons. The same goes for the period envisaged in all disputed provisions which is important for the person who is candidate for holder of public office to not be registered in the files of the state security bodies of the Republic of Macedonia and the civilian and military bodies of the state security of the SFRY. At the same time, the logics and the essence of the constitutional provision for freedom of personal conviction, conscience, thought  and public expression of thought is operationalised with the mentioned law. Due to this, the condition for the persons envisaged with it does not imply interference with the constitutional guarantee for uninterrupted performance of the function stipulated with the Constitution of the Republic of Macedonia – Article 23.

With regards to the disputed provisions of the Law that establish the range of persons this law refers to, the Court established that they cannot be brought  under doubt with regards to the constitutional norms and principles the Constitution is based upon. Namely, it is the right of the legislator to determine and clearly and concretely establish the range of persons this law refers to. This law lustrates persons who have individual guilt, not guilt in criminal law terms, but in the terms of not respecting the human rights and violating them, regardless of whether it is general violation of the human rights, in a more concrete range that is envisaged by the Lustration Law, and that is to collect data, information, files, etc. that breached the human rights due to political and ideological reasons. (TN: sentence not clear, probably meant “regardless of whether it is general violation of the human rights, OR in a more concrete range that is envisaged by the Lustration Law”)

From the analysis of the wholeness of the Law, and all of its separately disputed provisions, the Court decided that the right of the legislator to assess which persons should be covered by the disputed law originates primarily from the sphere of the findings by which the legislator can come to concrete evaluation and objectification of the level of democratisation of the state, as it is a concrete issue of the legal system of any other country that implements laws that regulate the same subject as the disputed law.

According to the Court’s assessment, the concrete law does not regulate or establish a general and special prevention, but it introduces the fulfilment of an additional condition to perform the public functions which requires loyalty from the holders of those functions towards the system and the constitutional principles it is based on, and those are certainly the rule of law, division of powers, protection of human rights.

According to the Court, the disputed Article 3 of the Law does not limit the basic rights of the individual and the citizen. This is because the establishment of special conditions does not imply discrimination, since all the rights in the Constitution are not absolute, apart from the ones which are explicitly named as such. All other rights can and should be limited, but for the benefit of a greater goal, in the sense of reaching a public interest which in this case is the securing of democracy and democratic values.

By the analysis of the constitutional norms, the wholeness of the Law and the disputed articles of the Laws which regulate a decision brought by the Commission for Verification of the Facts that determines collaboration with the state security bodies and its publication on the website of the Commission before the commencement of a procedure in front of the Administrative Court, the Court assessed that they are not contrary to the Constitution of the Republic of Macedonia. This is because in this concrete case the decision is brought in a procedure in front of a state administration body, in which the right to appeal or other form of legal protection is regulated by law, in the sense of Amendment XXI to the Constitution.

Namely, Amendment XXI of the Constitution guarantees the right to appeal against verdicts in first instance proceedings by a court. The right to appeal or any other legal protection against individual legal acts adopted in first instance proceedings by an administration body, organization and any other institution carrying public mandates shall be determined by law.

Hence, based on the competence given in Point 2 of the abovementioned Amendment, the legislator has established, according to the Court, the manner of proceeding in front of the Commission for Verification of the Facts, and the publication of the decision on the website as part of it, due to which the claim stated in the initiative that these disputed provisions are against the constitutional values and principles is unacceptable.

The articles of the Law that stipulate the application of the additional condition for the performance of a public office over persons who conduct party functions in political parties, who are members in religious communities and groups, as well as members of civil organisations were also a subject of analysis in front of the Constitutional Court. However, according to the Court’s finding, these disputed provisions do not exceed the constitutional limits for freedom of citizens in order to exercise and protect their political, economic, social, cultural and other rights and convictions, nor do they violate the constitutional stipulation of the division between the church, the religious communities and groups and the state. This is because the content of the legal provisions clearly and unambiguously imply that they regulate the possibility, but not the obligation, which means that the submitting of such statement is not obligatory, but voluntarily, due to which it cannot be accepted that in this concrete case there was an involvement of the state in the work fo the abovementioned organisations, and therefore the provisions that regulate this issue are not brought under doubt with regards to the ground values and postulates of the constitutional order of the Republic of Macedonia.

6. On the basis of the above mentioned, the Court decided as in Point 1 of this decision.

7. This decision was adopted by the Court, comprised of the President of the Court Elena Goševa and judges Nataša Gaber – Damjanovska, PhD, Ismail Darlišta, Nikola Ivanovski, Jovan Josifovski, Vangelina Markudova, Sali Murati, Gzime Starova, PhD and Vladimir Stojanoski. The decision regarding Article 1 Indent 2 in the part “to the day of adoption of the Law on Free Access to Public Information”, Article 1 Indent 3 in the parts: “former” and “public power or”, Article 3 Paragraph 1 Point 25, Article 3 Paragraph 1 Point 26, in the part “attorney and mediator”, Article 3 Paragraph 1 Points 1,2,3 and 4, Article 4 Paragraph 1 in the part “to the day of commencement of application of the Law on Free Access to Public Information” and in the part “as of 17 November 1991 to the day of commencement of application of the Law on Free Access to Public Information”, Article 14 Paragraph 1 Indent 2, Article 15 Paragraph 3, Article 18 Paragraph 4 in the part: “to the day of commencement of application of the Law on Free Access to Public Information”, Article 27 Paragraph 3, Article 28 Paragraphs 1, 2 and 3, Article 29 Paragraphs 1, 2 and 3, Article 30, Article 31 Paragraphs 2, 3 and 4, Article 33 and Article 40  was passed with the majority of votes.

U.No. 111/2012                              
9 April 2014                              
Skopje                              
                                   

PRESIDENT
of the Constitutional Court of the Republic of Macedonia
Elena Goševa

On the basis of Article 25 Paragraph 6 of the Rules of Procedure of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia” No. 70/1992), after my vote against the decision not to initiate a procedure for constitutionality assessment of Articles 1 Indent 2 in the part “to the day of adoption of the Law on Free Access to Public Information”, Article 1 Indent 3 in the parts: “former” and “public power or”, Article 3 Paragraph 1 Point 25, Article 3 Paragraph 1 Point 26, in the part “attorney and mediator”, Article 3 Paragraph 1 Points 1,2,3 and 4, Article 4 Paragraph 1 in the part “to the day of commencement of application of the Law on Free Access to Public Information” and in the part “as of 17 November 1991 to the day of commencement of application of the Law on Free Access to Public Information”, Article 14 Paragraph 1 Indent 2, Article 15 Paragraph 3, Article 18 Paragraph 4 in the part: “to the day of commencement of application of the Law on Free Access to Public Information”, Article 27 Paragraph 3, Article 28 Paragraphs 1 and 2, Article 29 Paragraphs 1 and 2, Article 30, Article 31 Paragraphs 2, 3 and 4, Article 33 and Article 40 of the Law on the Establishment of a Condition for Restriction on Performance of a Public Office, Access to Documents, and Disclosure of the Collaboration with the State Security Bodies (“Official Gazette of the Republic of Macedonia”, No. 86/2012) stated in the Decision U.No. 111/2012 brought on 09.04.2014, I hereby dissent and elaborate in writing the following

DISSENTED OPINION

With the abovementioned Decision, the Constitutional Court has, with the majority of votes decided not to initiate a procedure to assess the constitutionality of the Law on the Establishment of a Condition for Restriction on Performance of a Public Office, Access to Documents, and Disclosure of the Collaboration with the State Security Bodies (“Official Gazette of the Republic of Macedonia”, No. 86/2012) as a whole and fourteen of its provisions separately (Articles 1, 3, 4, 14, 15, 18, 27, 28, 29, 30, 31, 33, 36 and 40) which had been disputed as a whole or partially. The position of the majority of the judges in this third decision-making process of the Constitutional Court regarding the constitutionality of provisions related to lustration drastically differs from the previous two repealing decisions of the Court according to which the legal issues which are identically repeated in all three cases were considered as clearly elaborated and explained. Nevertheless, according to this, third decision-making, the Court points out in the Decision that the findings stated in the initiatives are groundless, having in mind that the Law has a temporary character and does not contain provisions that breach and limit basic citizen freedoms and rights; that the regulation of the lustration procedure, the determination of the timeframe and the other legal solutions are in purely a competence of the legislator, which determines the maturity of the society and the moment democracy can defend itself; that the timeframe to complete the lustration is constitutionally justified because democracy did not enter into force immediately in 1991, nor did the reforms of the judicial system and other segments, and as a consequence the Constitution was a subject of several amendment changes which took place for over a decade, which implies that the process of harmonisation of the societal system is a long-term one; that the personal changes of the cadres who worked for the one-party political and social system did not take place immediately and therefore they continued to violate citizens’ freedoms and rights due to ideological reasons; that the adoption of the Law on Free Access to Public Information (2006) is of crucial importance for this process because this law enables publicity and openness in the work of the public information owners and consequently democratisation of the society; that it is the legislator’s right to explicitly and concretely limit the range or the circle or the categories of persons this law refers to, taking into consideration the fact that only persons with individual guilt are being lustrated; and that there is no unconstitutionality in the publication of the name of a certain person for his/her co-operation with the state security bodies on the website of the Commission for Verification of the Facts because this is a decision adopted in a proceeding before a state administration body, for which according to the Constitution the legal protection remains to be regulated by law.

My opposed position regarding the articles I mentioned in this dissented opinion is based on: the previous practice and position of the Constitutional Court of the Republic of Macedonia with regards to this issue (Decision U.No. 12/2008 and 77/2008 as well as Decision U.No. 52/2011 and 76/2011), Amicus Curiae Opinion of the European Commission for Democracy through Law (Venice Commission) prepared at the request of the Constitutional Court specifically with regards to this disputed law and adopted at the 93 Plenary Session of the Commission, the Resolution No 1096. from 19963 with the accompanying Directives for its implementation and the Resolution No. 1481 from 2006 of the Council of Europe, the European Convention for Human Rights and Freedoms, as well as the jurisprudence of the European Court for Human Rights. It should be pointed out that all mentioned acts and sources are to a great extent harmonised in their positions and principles with regards to this issue.

In this direction, Resolution 1096 (1996) and its Directives adopted by the Council of Europe are of particular importance, since they contain the basic framework and boundaries within which a national lustration law could move without interrupting the newly established systematic norms and values in the new, plural societies that must be based on th e rule of law. Taking into consideration that the lustration is a unique political measure that is used very rarely and only when the current legal system of a country cannot intervene, the Council of Europe makes a serious attempt from the aspect of the contemporary legal principles to draw the acceptable legal limits up to which the lustration process might interfere. Having in mind that such normative naturally moves on the edge of the points of tangency of the law and politics and due to the fact that one must be careful in the implementation of this process in the new constitutional establishment not to breach the guaranteed human rights, this documents carefully draw the legal boundaries of reach and range of the lustration process, which means that the lustration should be applied in a limited manner, precisely and only where necessary. I reckon that the justification of such a proceeding is grounded on the trust that the new social value (creation of a sustainable democratic and politically plural society) and the human dimension these societies will gain through the achievement of a national reconciliation, will enable a successful process of transition of the countries from the communist totalitarian regime with a simultaneous change of the social mentality, which will contribute to the construction of a new system, more humane and closer to the citizen. Taking into consideration that the human factor is the basic carrier and instigator of the democratic changes, it is believed that the lustration process, through a temporary “elastic” interpretation of the legal principles, id est timely limitation of the performance of a public office of the persons who violated the human rights in the previous system, will protect the fragile newly established political systems from retrograde changes in development and possible undemocratic use of the mechanisms of the state and the political system, because the authoritarianism and/or totalitarianism can thrive in various ideological matrixes. At the same time, one must not ignore the fact that the Council of Europe explicitly points out that the lustration process should not turn into political revenge and settling of one current political option towards another. Without any doubt, national laws that will fail to reach this delicate balance, take the risk of failing to achieve broad social acceptance and loss of legitimacy of the process.

From the aspect of the accordance of the disputed law with the European Convention for Protection of Human Rights and Basic Freedoms as well as the previously mentioned resolutions (meaning the European and international standards related to this issue), I reckon that the Court did not take into consideration the Amicus Curiae opinion of the Venice Commission, whose provisions firmly stand on the principles proclaimed in the abovementioned international documents. I also reckon that during the establishing of its position, the Constitutional Court should have to a much bigger extent taken into consideration the jurisprudence of the European Court for Human Rights, which carefully considered the national circumstances of all cases regarding lustration, including the breach of the right to privacy, the difference between the public and private sector, the “belated timing” of the lustration law in the respective country, which is of core relevance for the overall evaluation of the proportionality of the lustration, the justification and necessity of the measure in a democratic society, as well as the provision of the right to a righteous judicial procedure.
More specifically, my position regarding the Law on the Establishment of a Condition for Restriction on Performance of a Public Office, Access to Documents, and Disclosure of the Collaboration with the State Security Bodies as a whole and the disputed provisions is the following:

Starting from the fact that the constitutional competency of the legislative power is the execution of the legislative function, I believe that the legislator has the constitutional basis to regulate with law a certain issue from the field of the social life for which specific regulation was considered necessary and justified, or to establish the normative presumptions and limitations that will restrict the violators of human rights in the previous political system from being holders of public office in the current democratic system, which means that lustration as a process and its legal regulation  are not unconstitutional. However, the disputed specific legal solutions that are identically regulated as the first two times the Court has intervened, and which are subject of observation in this case as well, continue to represent a large deviation from the primary and legitimate goal due to which there is an international recommendation for such laws to be adopted. The Republic of Macedonia has evidently initiated a wider and deeper process of lustration compared to other countries, but its current legal provisions have a visible discrepancy both compared to the international recommendations and principles and the constitutionally guaranteed rights of the citizens (Article 8 Paragraph 1 Indent 1, 3, 4; Article 9, 11, 13, 14, 18, 23, 25, 30, Paragraph 1, 32 Paragraph 1, Article 50 Paragraph 1 and 2, Article 51, 54, 55, Article 91 Paragraph 1 Indent 1, Article 112 Paragraph 3 and Amendment XXI of the Constitution).

With regards to the determination of the timeframe within the Law is supposed to include the actions for which the persons should be lustrated as well as the period within which the stipulated legal measures towards the lustrated persons will be implemented, the Directives of the Council of Europe from 1996 suggest that lustration is observed only with regards to the actions, the work or the membership that took part in the period from 1 January 1980 to the fall of the communist dictatorship (meaning the beginning of the nineties) and the lustration measures that should have strict time limitations, should end by 31 December 1999 at the latest. Nevertheless, despite this position, the case with all three legal instruments in the Republic of Macedonia which differ from this recommendation shows lack of serious and grounded legal argumentation, complete inconsistency and lack of a firm position with regards to this issue, even when all legal instruments are compared with each other. Regretfully, this condition has repercussions over the state’s legally officialised interpretation on the way the legal system in the Republic of Macedonia has functioned and still functions after 1991. Namely, all three legal instruments1 (which include the current one), stipulate a different timeframe within which the actions for which the persons will be lustrated were undertaken, since initially the timeframe started on 2 August 1944 and ended on 5 February 2008 (day of commencement of the implementation of the old law) and now this timeframe ends on 01.09.2006, when the Law on Free Access to Public Information was adopted. When it comes to the application of the lustration measures, initially it was stipulated that the deadline would be 5 February 2013, and now it is stipulated that the Law will be valid ten years from the appointment of the Commission (Article 42 of the Law) which means until 2019, but the deadline for implementation of the lustration measures is not explicitly stipulated
2.

My personal position regarding the issue of determining the period within which the actions subject to lustration process are observed is identical with the Decision of the Constitutional Court U. No. 42/2008 adopted on 23.03.2010, which elaborates: “If one takes into consideration that lustration is a process of dealing with the past in order to identify and eliminate the possibilities for further violation of human rights in the current social and political system, this means that it should apply to the period when the persons had the opportunity to violate the human rights and misuse them for personal goals, without the existence of constitutional and legal mechanisms for their sanctioning, which on the other hand implies that the lustration cannot apply to the period when the country had built a different social and political system, based on human rights and their protection. The principle of the rule of law in democratic societies impose sanctioning of the human rights violations within the framework of a relatively permanent legal system and not with measures of occasional and temporary character, like the disputed law is in the given historical circumstances”.

The abovementioned Decision U.No. 42/2008 also implies that taking into consideration the fact that the current Constitution of the Republic of Macedonia should be the basis upon which the lustration of individuals affected by the Law will be conducted, meaning that the lustration should protect the values of this Constitution, there is no constitutional obstacle to apply the current legal regime established by the laws, which will enable the citizens whose rights were violated or misused to exercise their rights, and the persons who enabled these violations as well as the persons who collaborated with the state security bodies against the regulations of the Constitution and the laws, or who have collaborated in a way characteristic for the previous system  also before the adoption of the Law from 2008 to be subject of criminal and other appropriate responsibility for the period after the adoption of the Constitution of the Republic of Macedonia.

Therefore, the democratic constitutional order should defend itself directly via the democratic functioning of its institutions, the implementation of the rule of law and the systematic guarantees of the human rights protection. The democratically elected governments in the newly established political systems are permanently responsible towards their electorate, and are subject to legal and constitutional limitations, including criminal prosecution, and each democratic country can legitimately request minimal loyalty from its public servants without using the special instrument of lustration. There are different types of mechanisms after 1991 that can sanction each action of an individual that has the elements of a punishable act. Therefore, the prolongation of the timeframe of the Lustration Law to the period after 1991 is unconstitutional, having in mind that “it implies negation of the values and institutions established in the Republic of Macedonia in conformity with the current Constitution and questions the functioning of the legal system and the rule of law as a ground value of the current social and political system”.

I believe that it is an imperative of the constitutional law that the decisions of the Constitutional Court (which are final and executive) that repealed twice the possibility to conduct the lustration process in the period after the adoption of the Constitution in 1991 should be respected in the implementation of the current Law, which would serve the purpose of securing the rule of law as a ground value of the constitutional order of the Republic of Macedonia. This would mean that the moment of the commencement of application of the Constitution (the day the Constitution was proclaimed by the Parliament of the Republic of Macedonia – 17 November 1991) is the final deadline until which the lustration process can be conducted. However, if this date is accepted as the deadline for the implementation of the lustration process without any concretisation and grounded legal explanation of this solution by the legislator (especially taken into consideration that twoc changes of the Law with regards to the implementation timeframe have already been conducted after the adoption of the two decisions by the Constitutional Court), I reckon that this intervention is legally unallowable and that there is a risk of creating a serious distortion of the constitutionally guaranteed principle of the rule of law. The constant variation of the legal provisions regarding the lustration timeframe, as an issue which is of core importance for the lustration process, is in itself a problem which does not comply with the criteria for clear and precise norm which is a necessary element to ensure the rule of law.

It is a fact that the Republic of Macedonia is a member of the Council of Europe since 1995 which means that its systematic and democratic progress as well as the respect of the European standards has been monitored before it became a member. The possible existence of notable historical and political circumstances in the country, harsh and mass forms of criminal acts accompanied by constant breach of the basic human rights would not be unnoticed. Therefore, there is no firmer and more relevant timeframe from which the new social, political and most of all constitutional order starts than the moment of the adoption of the new Constitution of the Republic of Macedonia in 1991. The ground values the new system is built upon on are established exactly then on the basis on which the entire legal system of the country was constructed afterwards.

The Constitution of the Republic of Macedonia is the one which grounded and constructed the political system and the democratic pluralism, established the division of powers, included the protection of human rights and freedoms as a ground value of the constitutional order, constructed the normative regulations and institutions for protection of the individual human rights and freedoms. The symbolism of the moment the new state system that guarantees the legal state and the rule of law is established, exceeds the act of adoption of all the other laws that partially regulate and elaborate certain areas and issues, since no other law is as universal and thorough as the Constitution, which will always have the primate in the hierarchy of the normative acts. Therefore, the issue regarding the point of time from which it can be considered that the legal state was introduced in the Republic of Macedonia has to be clearly connected to the adoption of the new Constitution. The overemphasising of a law (as in the case with the Law on Free Access to Public Information from 20063) the adoption of which is the final point of the lustration process according to the last legal regulation, is unallowable, because it is given an ad-hoc and groundless supremacy over the other laws, and even over the Constitution, thus relativizing all other legal mechanisms and principles for human rights protection stipulated by the Constitution.

Additionally, the interpretation of the selection of the timeframe until 2006 which is connected with the Law on Free Access to Public Information is that this deadline is taken as a final deadline for observation of activities that are subject of the lustration process, because it is assumed that from that moment on all interested institutions and persons will acquire the information in conformity with the regulations and requests for access to information stated in that law. Nevertheless, one should take into consideration that it is a law which regulates the free access to all kinds of information which are considered “public” and which are in possession of the state administration and other institutions determined by the law, the legal enterprises and the legal entities and individuals that perform public powers, as well as the local self-government. It is clear that the nature of the subject regulated with the disputed law colloquially named Lustration Law can be hardly interrelated with such kind of generally determined information that should be accessible by the general public in accordance with the Law on Free Access to Public Information. In reality, the access to the necessary information related to lustration is not so easy because the nature of the issues that are classified information are subject of the bylaws of the security bodies that regulate this issue, and therefore this connection is ineffective, illogical and hard to implement in reality. Additionally, there is the question of whether in spite of the earlier adopted Law on Treatment of Personal Dossiers Kept by State Security Service which enabled all interested individuals to investigate their own files, this much more widely grounded law which aims at providing various public information could now enable the potentially affected individuals to discover their previous condition – that they had been politically discriminated and/or molested – by reading their own secret files and eventually initiate a lustration procedure.

The thesis that the legal system in the Republic of Macedonia has been constructed in phases during the nineties is also supported by the list of laws adopted in that period which deal with the subject in question, each of them regulating the protection of human rights of the citizens: the Law on Courts (“Official Gazette of the Republic of Macedonia” No. 36/1995, 64/2003 – no longer in effect) after which the new Law on Courts was adopted (“Official Gazette of the Republic of Macedonia” No. 58/2006, 35/2008, 150/2010), the Law on the Ombudsman (“Official Gazette of the Republic of Macedonia” No. 7/1997 – no longer in effect), after which the new Law on the Ombudsman was adopted (“Official Gazette of the Republic of Macedonia” No. 60/2003, 114/2009), Law on Treatment of Personal Dossiers Kept by the State Security Service, adopted on 5 July 20004; Law on the Rights of the Prosecuted and Imprisoned for the Ideas of Independence of the Macedonian People and Its Statehood and the Members of Their Families (“Official Gazette of the Republic of Macedonia” No. 61/2002, 58/2005); Declaration on apologising to victims of regime repression in the period 1945-1990 adopted by the Parliament on 7 April 2006.

The Criminal Code (“Official Gazette of the Republic of Macedonia” 37/1996, followed by many changes and amendments5) is of special significance, and it is important to mention  that already in 1996, Article 137 Paragraph 1 of this Code stipulates that “Whosoever, based on the difference in gender, race, colour of the skin, class, member of marginalized group, ethnic background, language, nationality, social origin, religious belief, other beliefs, education, political affiliation, personal or social status, mental or physical impairment, age, family or marital status, property status, health condition, or any other ground foreseen by law or ratified international agreement, deprives or limits another from his human and citizen rights, determined by the Constitution of the Republic of Macedonia, a law or a ratified international agreement or who based on these differences favours the citizens contrary to the Constitution of the Republic of Macedonia, a law or a ratified international agreement, shall be sentenced to imprisonment of three months to three years”. Paragraph 2 states that “If the crime referred to in paragraph 1 is committed by an official person while performing the duty, the person shall be sentenced to imprisonment of six months to five years”, while Paragraph 3 stipulates that “If the crime referred to in this Article is committed by a legal entity, it shall be financially fined”. These articles clearly point out to the fact that an individual who found himself /herself discriminated due to his/her personal political conviction, was able to seek protection via an appropriate criminal procedure, already starting from 1996.

With regards to the other disputed aspects of the Law, and while remaining on the position of the Court stated in the Decision U.No. 52/2011, I reckon that the question raises of whether the former public office holders (mentioned in Article 1 Paragraph 1 Indent 2 of this Law) who are not deceased should also be subject of lustration only due to the fact that they are former public office holders, as well as what is the aim of their lustration in the sense of the Law, which should by its essence cover only the public office holders in the current democratic system for whom it was previously confirmed that they have directly or indirectly participated in limitation or breach of basic freedoms and rights of the citizens due to political or ideological reasons in order to gain material benefit or privileges to get employed or advance in the service. It is understandable that, if the former public office holders are once again in a situation of becoming candidates for public office holders, they will be, in accordance with the law, obliged to submit a statement on non-collaboration with the secret services together with all the other candidates, which is a justified measure aimed at securing and protecting the public interest. However, if they do not appear as candidates or public office holders, just as many other citizens who, unlike the former public office holders, do not have the obligation to undergo the investigation process, the necessity of establishing whether they fulfil the additional condition for performance of a public office (which is practically the title of the law, meaning that the investigation should relate to the performance of a public office) remains unclear, as well as the goal of their lustration, having in mind that it is a process of dealing with the past, in order to identify and eliminate possibilities for further violation of human rights in the current social and political system, i.e., lustration’s goal is to protect the future, and not deal with the past per se.

In the list of “persons” the law refers to, Article 3 of the Law includes the head of state, members of parliament, certain members of the executive and legislative power, but also certain employees in commercial broadcasting companies, certain functionaries in political parties and religious groups, or people on managerial positions in the civil sector entitled “organisations of public character”, as well as some non-public functions, such as attorneys or individuals who gained over 5% capital in the former socially-owned (public) enterprises. The procedure of automatic lustration according to Articles 26, 27 Paragraphs 4 and 5 and Article 29 Paragraph 1 of the Lustration Law refers to on the functions listed in Article 3 Paragraph 1, while the ones listed in Article 3 Paragraph 2 are only subject to lustration upon a written request from their company or organisations, meaning that this is a free choice of the abovementioned entities. I think that it should be emphasised here that some of the listed categories of persons the Law refers to are those who have already been twice a subject of intervention of the Court (the intervention refers to members of religious organisations, civil organisations, political parties, commercial broadcasting companies, attorneys, mediators), and the only novelty is Point 25 of Article 3 (persons who gained over 5% capital in previously socially-owned enterprises).

The Constitutional Court has in its previous decisions established that the state cannot go further from the persons employed in the state bodies and the ones who are in decision-making positions that might enable them to conduct human rights violation. This repeated expansion of the range of people the Law refers to results with interference of the state in the work of the concerned persons and organisations that do not fall in the area of state institutions, which exceeds “the constitutional guarantees for freedom of association to exercise and protect their political, economic, social, cultural and other rights and convictions” (Article 20 of the Constitution), but it is also “breach of the constitutional provision for separation between the church and the religious communities from the state” (Amendment VII). The state has no competence to give instructions on which lustration “conditions” should be stipulated for those persons who act in private or semi-private organisations, nor has it right to imply obligations that would have consequences in the work of these organisations that are not part of the public sector.

In view of the used terminology, Article 3 of the Law on Associations and Foundations (“Official Gazette of the Republic of Macedonia” No. 52 from 16.04.2010), “Organization” is any association, foundation, union, as well as any organizational form of foreign organization, and any other form of association, registered in accordance with the provisions of that law. According to the Lustration Law, it is implied that the associations, foundations, unions or any other form of association, i.e. the holders of functions and powers in these organisations might be part of the persons to which this additional condition for performance of public function applies. Even though this provision has an optional character, I believe that the legislator once again interferes in organisations that are part of the private sphere and stipulates the optional additional condition which is not in conformity with Article 20 of the Constitution. Furthermore, there is a possibility of violation of the freedom of association, which is also widely defined in the international acts, because there is a theoretical possibility that the lustrated persons might want to establish an association to defend their rights – and it is evident that this would not be possible according to the current legal solution – although the law formulated in this way implies that it is a fact.

The position is identical also regarding the interference of the state in the work of the religious communities and groups, which is against Amendment VII to the Constitution, which stipulates that The Macedonian Orthodox Church, as well as the Islamic Religious Community in Macedonia, the Catholic Church, Evangelical Methodist Church, the Jewish Community and other Religious communities and groups are separate from the state and equal before the law. The Law on the Legal Status of Churches, Religious Communities and Religious Groups (“Official Gazette of the Republic of Macedonia”  No. 113/07 dated 20.09.2007) regulates the foundation and the legal status of the church, religious communities and religious groups, religious services, prayers and religious rituals, religious teaching and other educational activities, incomes of the church, religious community and religious group, as well as other issues. In conformity with Article 2 Paragraph 2 of this law, religious clerk is a person who is in service of the church, and who belongs by his religious conviction to a church, religious community and religious group and conducts religious rituals, educational, organisational and humanitarian activities in conformity with the norms of the supreme body of his/her registered church, religious community and religious group, and which are in compliance with the Constitution, the laws and the legal regulations in the Republic of Macedonia. Taking this into consideration, it is indisputable that the religious communities and religious groups can stipulate with their internal acts special conditions for their members, but the country has no competence to instruct which conditions should apply to the religious clerks and let alone to reinvestigate those conditions through bodies and organs formed by the state and financed by the Budget of the Republic of Macedonia, such as the Commission.

According to this law, the ones who are obliged to submit a written statement to the Commission are the attorney’s offices and mediators within the deadline stipulated with the Law, while the founders of, employed journalists and editors in a broadcasting company and non-profit broadcasting institutions which hold a licence for carrying out a broadcasting activity as well as founders of and employees in the companies in the field of printed media have an optional obligation to submit this written statement. I reckon that, taken into consideration that the Constitutional Court has stated its position also regarding these categories of people in its previous decisions, and especially due to the fact that the wide scope of persons the additional condition should apply to obviously includes the employees in the private sector which do not have access to public office and have no possibility to endanger the public or state security or the protection of the rights and freedoms of the others, Article 25 of the Constitution, which regulates the right to privacy, is breached as well as Article 32 of the Constitution since their lustration implies restrictions of their right to work. For an instance, it is more than clear tht having in mind the legally given competencies, in the process of providing legal assistance ex officio the attorneys protect their clients and do not violate their rights. Any additional condition de facto limits their constitutionally guaranteed right to work, which deprives them of their existential and social rights.

Lustration of the category of persons included in Article 3 Paragraph 1 Point 25, i.e. the persons who gained over 5% capital in socially-owned enterprises in conformity with the Law on Transformation of the Socially-Owned Enterprises, is a new and disputed provision. Having in mind that they are not holders of public office or public power, but that, in the contrary, they are active in the private sphere, I believe that in this case the framework within which the lustration process should take place is exceeded and that their constitutional right to privacy is obviously violated. Since the act of gaining over 5% of capital, i.e. the current ownership and the rights that result from it, is actually the legal basis for lustration of these persons, the question raises regarding the reasoning behind the the obligatory inclusion of these persons in the lustration filter due to the gaining of ownership which took place in the past in accordance with a legally stipulated procedure that was part of the legal order of the country. Moreover, one should have in mind that it is impossible to interfere in such a manner in the right to ownership and inheritance (Article 30 Paragraph 1) as well as the freedom of the market and entrepreneurship (Article 55 Paragraph 1) which are guaranteed with the Constitution. If one excludes the possible criminal acts that could be prosecuted also in the current legal system on other than lustration basis, generally such indirect reaching for the ownership through the lustration process explicitly breaches the rule of law and legal safety of the system.

One additional absurd is the inclusion of not only the persons who gained over 5% capital in the former socially-owned enterprises in the lustration process, but also, as Point 25 stipulates, “the persons related to them”, which includes individuals who are: related by marriage or adoption; children and parents, brothers and sisters, step-brothers and step-sisters, grandmothers, grandfathers and grandchildren; related by blood to second degree in any other manner; have lived continuously in a community for five years as a parent – guardian and a child, step-mother or step-father and a step-son and step-daughter, a daughter-in-law, son-in-law and parents of the spouses. It is clear that these extensively listed categories of persons, listed only on the basis of the personal connection to the person who owns 5% of the former social capital, have no access to public office and no possibility therefore to endanger the public and state security, nor the rights and freedoms of others. Having in mind that the process could include literally everybody, such an extensive scope of persons the lustration filter should be applied on reaches its absurd limits and produces a possibility of harsh voluntarism, thus directly breaching the constitutionally guaranteed right to privacy.

Another unclear legal issue in the used legal terminology is the meaning of the term “public office” vis-à-vis the term “holder of public power”. Namely, the disputed Article 3 of the Law gives an extensive list of functions whose holders will be subject to the lustration measures, and the regulation in Paragraphs 1 and 2 uses the general term “person”. On the other side, Article 1 Indent 3 and Article 14 of the Law imply on lustration of “holders of public office, public powers and public activity”. The terms “holders of public office or public power” are as I believe clear and determined, while the term “holder of public activity” is very imprecise, general and undefined with this Law, and with regards to other laws it is also too broad and imprecise to be used as basis to initiate a lustration procedure. Such unclear and imprecise regulations are not in the function of guaranteeing the legal security of the citizens and the principle of rule of law as a ground value of the constitutional order of the Republic of Macedonia.

Article 15 of the Law stipulates that the Commission keeps a registry of persons for which it will be determined that they fulfil the condition that restricts the performance of public office (Paragraph 1). Disputed Paragraph 3 of Article 15 of the Law stipulates that the registry mentioned in Paragraph 1 of this Article is published on the website of the Commission. The publication is stipulated and regulated also in the disputed Articles 14 Paragraph 1 Indent 2, 27 Paragraph 3, 28 Paragraph 2, 29 Paragraph 2, 31 Paragraphs 2, 3 and 4 and Article 33 of the Law. The abovementioned disputed provisions stipulate that after examining the persons referred to by the Law the Commission shall keep a Registry and publish their names on its website, along with the Decision that establishes co-operation with the state security bodies and the documents that were used to prove the co-operation of the respective person with the state security bodies. Article 31 Paragraph 2 points out that the personal data of the persons who collaborated with the state security bodies are not considered personal data as referred to in the Law for Protection of Personal Data.

With regards to the abovementioned legal issue, the Constitutional Court of the Republic of Macedonia in its Decision No. 42/2008 and 77/2008 referring to the previous Law on the Establishment of an Additional Condition for the Performance of Public Office established that the publication of names of persons who have co-operated with the state security bodies in the “Official Gazette of the Republic of Macedonia” after the procedure becomes final in front of an authorised court is a breach of dignity, moral and personal integrity of the citizen protected by Article 11 and Article 25 of the Constitution. As a comparison, the current disputed Law stipulates that the Decision that establishes co-operation with the state security bodies will be published within three days from the day the person was informed, and will contain his/her full name and surname, the documents that prove his/her co-operation with the state security bodies and the public office or power that he/she was/is performing. This provision actually derogates the Law on Protection of Personal data, which refers to general but also specific personal data for which the respective institution has to request an explicit permit from the holder of these data (which refer to his/her political affiliation, religious conviction, health situation, sexual orientation, etc.) and which can be publically accessible via the documents published on the website of the Commission.

Human dignity is not just one of the subjective human rights that are explicitly recognised in the abovementioned Articles of the Constitution, but also a ground value of the new Macedonian society. Therefore, I believe that the position of the Constitutional Court stated in the previously adopted decisions, according to which the publication of the names (and in my opinion this is especially valid for the method of publication stipulated with the newly disputed law) is unallowable because it exceeds the justification in a democratic society. The disputed provisions of the current Law which stipulate publication of the decisions, the names and the documents on the website of the Commission also have the character of a sanction that might have consequences in all spheres of life, and not only in the restriction of performance of public office, which should not be one of the aims of the Law, due to which I reckon that they can be brought under suspicion in relation with Article 11 and Article 25 of the Constitution.

Amendment XXI Point 1 of the Constitution guarantees the right to appeal against verdicts in first instance proceedings by a court, and stipulates that the right to appeal or any other legal protection against individual legal acts adopted in first instance proceedings by an administration body, organization and any other institution carrying public mandates shall be determined by law. However, when it comes to this concrete legal act, the legislator does not stipulate an appealing procedure nor a court proceeding before the Commission publishes the name of the person and many other data, which deeply violates the dignity of the respective person. The negative consequence of such publication over the person’s reputation cannot be easily eliminated with an eventual correction. This violates the right to equality and presumption of innocence and seriously breaches the principle of rule of law.

There is an additional absurd in Article 33 of the Law which regulates that the data shall not be published only if the person is deceased or withdraws his/her candidacy for a public office or public power or submits a resignation as a holder of a public office or public power within a period of three days prior to the written notification about the results of the conducted examination. According to this, it is contradictory that the law itself actually stipulates that persons who are not candidates for any function are also included in the lustration process, while former holders of public office are not mentioned at all in this provision, a fact which dislocates the overall legitimate goal and justification of such lustration in their case.

Taking into consideration that there is a legitimate right and obligation of the Constitutional Court to follow the execution of its decisions (in accordance with Article 87 of the Rules of Procedure of the Constitutional Court) I believe that it is worth mentioning in this dissented opinion that the previous two Decisions of the Constitutional Court have not been taken into consideration also in the implementation of the Law. Namely, the current flaws in the Law have enabled the Commission for Verification of the Facts to freely and without any limits interpret and implement the Law, over expanding the lustration process at the same time.

Although it is clear the lustration is intended for persons who could be in position to be holders of public office also in the future, which logically excludes pensioners (unless they accept to perform public office again), and especially the deceased persons due to the realistic inability to become holders of public office, the Commission lustrates all these categories. Apart from my opinion that such lustration proceeding is absurd, inappropriate and unethical, it is also clear that the deceased person cannot exercise neither legally nor physically his/her right to defend against the act of the Commission for Verification of the Facts. Besides the fact that the title of the Law contains the words “access to documents and disclosure of the collaboration with the state security bodies”, this act should not be interpreted too broadly and isolated from the lustration process. This does not in any case imply that, without any other logical or legal explanation a new competence is “added” to the Commission in the implementation phase (and without a legal provision), which considers that it can lustrate and publish the names of deceased people as a new special activity.

Also during the evaluation of the Law by the Venice Commission there was the issue of the practical method of interpretation and implementation of Article 4 Paragraph 1 and especially Article 18 Paragraph 4 by the Commission for Verification of the Facts, taken into consideration that the person should cumulatively meet several conditions: he/she should be registered in the files of the state security bodies as a secret collaborator or informer, which means that the activity was conscious, secret, organised, continued, based on a written document (i.e. written consent of the person who accepted the collaboration); he/she should have participated in the operational collection of information and data that were processed afterwards; he/she should have breached in that way the basic rights and freedoms of the citizens out of political and ideological reasons and gained material benefit or privileges to get employed or advance in the service. The dilemma appears as a result of such difficult and confusing definition, which could lead to a great possibility of an inconsistent implementation in practice, because following the order of things, the Commission should for each lustrated person establish the fulfilment of all these legal preconditions and support it with appropriate documentation. It is believed that each partial interpretation and implementation of this regulation seriously breaches the legitimacy of the conducted procedure.

Unfortunately, the Parliament of the Republic of Macedonia as legislator did not submit a response to the Court regarding the findings stated in the initiatives nor did it send its representative to the preparatory session of the Court regarding this case. The Parliament also avoided the obligation to interpret the imprecise and problematic provisions upon a question submitted by one of the members of parliament, in spite of the fact that those provisions create serious dilemmas during the practical implementation of the law, as well as inconsistent implementation of the Law from the side of the Commission for Verification of the Facts.

Finally, the general and insufficiently elaborated argumentation stated in the decision not to initiate a procedure for constitutionality assessment fails to justify the position assumed by the Court. I reckon that the provisions stated in the beginning of this dissented opinion should be annulled, taking into consideration the fact that the Constitutional Court has already stated its position on their unconstitutionality already twice before, and that there are no legally justified arguments that would indicate the opposite in this legal act as well. Each provision that limits the citizen’s right in a manner stipulated with this law should take into consideration the human rights guaranteed by the Constitution and be predictable and clear in line with the values it aims to protect and above all be necessary in a democratic society.

Constitutional Court Judge
Nataša Gaber – Damjanovska, PhD