U.no.220/2007

On the basis of Article 110 of the Constitution of the Republic of Macedonia and Article 71 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 13 March 2008, the Constitutional Court of the Republic of Macedonia passed the following

1. NO INTIATIVE IS INSTIGATED for the appraisal of the constitutionality of Article 26 paragraphs 2 and 3 of the Law on Travel Documents of Citizens of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, nos.67/1992, 20/2003, 46/2004 and 19/2007) and Article 2-b paragraph 2 of the Rulebook for Changing and Supplementing the Rulebook for the Forms of Travel Documents and Visas of Citizens of the Republic of Macedonia, about the way of photographing for passports and for keeping records (“Official Gazette of the Republic of Macedonia”, no.40/2007), adopted by the Minister of the Interior.

2. The Skopje Chamber of Craftsmen – Photographers’ Section -, submitted an initiative to the Constitutional Court of the Republic of Macedonia to appraise the constitutionality of Article 26 paragraphs 2 and 3 of the Law and Article 2-b paragraph 2 of the Rulebook, noted in item 1 of the present resolution.

According to the statements in the initiative, the contested provisions of the Law and Rulebook provided a profitable economic activity of one ministry, which with such legal competence gained the status of an economic subject having a monopoly on the market in respect of the other economic subjects, for the carrying out of the photographing activity. Namely, the challenged provisions of the Law and Rulebook regulated that only the Ministry of the Interior could photograph the citizens of the Republic of Macedonia for the entry of the biometrical characteristics in the passports being issued to citizens.

If the state wished to carry out a photographing activity for the needs for the passports being issued through the Ministry concerned, then it could found a separate public enterprise for that purpose, which equally with the other economic subjects on the market would offer the noted services with the quality required, and in this case without the existence of a public enterprise and with direct legal empowerment the Ministry of the Interior was provided with an exclusive right to the monopolistic running of an economic activity, which is essentially required for the needs for issuing passports.

From the aforementioned reasons, the challenged provisions of the Law and Rulebook were not in agreement with Article 55 of the Constitution of the Republic of Macedonia, which guarantees the freedom of the market and entrepreneurship, and the Republic should ensure an equal legal position to all subjects on the market, and take measures against monopolistic positions and conduct on the market.

3. At its session the Court found that Article 26 of the Law on Travel Documents of Citizens of the Republic of Macedonia envisages the following:

“The passport and travel list shall include the following data about the holder of the travel document:

1) full name;
2) day, month and year of birth;
3) place of birth;
4) residence;
5) sex;
6) citizenship;
7) personal registration number of the citizen;
8) holder’s signature.

The passport also contains data about biometrical characteristics of the holder of the travel document, which are compulsorily taken from the applicant upon applying for the issuance of a passport, for the purposes of establishing his/her identity.

The data for biometrical characteristics of paragraph 2 of this Article are a photograph and prints of two fingers.

The passport of paragraph 2 of this Article also has a contactless chip and a machine readable part.

The group passport shall include the state, that is, states in which the group travel, the validity of the group passport, the full name, date of birth, place of birth, residence and address of the apartment of the leader of the members of the group.

The diplomatic and official passport shall include the data of paragraph 1 items 1, 2, 3, 5, 6, 7 and 8 of this Article, as well as the data about the function of the holder of the passport.”

Article 2-b paragraph 2 of the Rulebook about changing and supplementing the Rulebook about the forms of travel documents and visas for nationals of the Republic of Macedonia, about the manner of taking photographs for travel documents and for keeping records, has envisaged the following:

“The photograph with the size 35 mm x 45 mm shall be provided by means of taking a photograph of the person upon applying for the issuance of a passport, whereby the same shall be identical and shall fit the appearance of the applicant. The photograph shall be transferred and stored in an electronic database.”

4. Under Article 8 paragraph 1 line 7 of the Constitution of the Republic of Macedonia, the freedom of the market and entrepreneurship are the fundamental values of the constitutional order of the Republic of Macedonia.

Under Article 55 paragraph 1 of the Constitution, the freedom of the market and entrepreneurship is guaranteed, while under paragraph 2, the Republic ensures an equal legal position to all subjects on the market and the Republic takes measures against the monopolistic position and monopolistic conduct on the market.

Under paragraph 3 of this Article of the Constitution, the freedom of the market and entrepreneurship may be restricted by law only for reasons of the defence of the Republic, protection of nature, the environment, or public health.

The provisions in Article 26 of the Law on Passports stipulate which data about the holder of the travel document should be included in the passport and travel list. Within these frameworks, the contested provisions of paragraphs 2 and 3 of this Article also stipulate data about the biometrical characteristics of the holder of the travel document, which are taken from the applicant upon applying for the issuance of a passport, for the purposes of establishing his/her identity, and biometrical characteristics are considered to be a photograph and prints of two fingers.

On the basis of Article 48 of the Law on Passports the Minister of the Interior adopted the contested Rulebook in which the provisions of Article 26-b operationalise in detail the taking of biometrical data – photograph, prints of two fingers, as well as the holder’s signature in a digital form.

The contested paragraph 2 of this Article in the Rulebook works out the issue in the Law regarding the manner in which the photograph for the travel document is provided, and regulates that the photograph is provided by taking a photograph of the person upon applying for the issuance of a passport, and the photograph is transferred and stored in an electronic database.

On the basis of the stated constitutional and legal norms, and given the statements in the initiative, it arises that by photographing the applicant for a passport, the Ministry of the Interior provides biometrical characteristics of the person for the purposes of issuing a passport upon the application of the said person which is within the competence of this body of state administration, with quality standards and security format which according to the legislator are required to carry out the duties from the field of internal affairs in the Republic of Macedonia. The Ministry takes photographs only of persons applying for travel documents, and not outside this procedure, and it does that in the function of providing biometrical data for the passport, and not for other purpose.

Namely, the photograph is a biometrical characteristic of the countenance of the holder of the travel document. The Ministry of the Interior as the competent body with the act of issuing the document within the frameworks of the administrative procedure verifies the data in the document that are based on the biometrical characteristics. This pursuant to Article 167 paragraph 1 of the Law on General Administrative Procedure (“Official Gazette of the Republic of Macedonia”, no.38/2005), under which the document issued in the prescribed form by a state authority within the framework of its competence, and which may be adapted for electronic data processing, as well as the document issued in such a form by a legal or other person in the matters it carries out on the basis of public mandates (public document), proves that which is verified or determined inside.

Hence, the photograph provided in the Ministry is actually a datum in the passport, that is, a biometrical characteristic, and the actions that it undertakes are within the frameworks of the administrative procedure it conducts in the issuing of the document the data of which are verified by the Ministry and they derive from the administrative actions of the body in accordance with law.

The travel document, according to the Court, should at the same time include security characteristics in line with the standards in the international acts, for which the Ministry is responsible in the carrying out of the matters for the issuing of travel documents. Namely, the the EU Council Regulation no.2252/2004 on the standards for security characteristics and biometry in passports and travel documents issued in member states, as well as the Resolution of the representatives of member states in view of the security characteristics of the travel documents which contain the minimum security requirements for EU travel documents, defines the minimum standards that states should ensure. According to the Regulation, in the part “issuance techniques” it is stipulated that in order to secure the data in the passport or travel document, that is, to have them appropriately secured against attempts for forgery, the biographical data, including the countenance of the holder, the holder’s signature, and the principal data for the issuance (place, authority) should be integrated into the basic material of the document. Conventional methods of attaching the photograph shall not be used any more. Only the following techniques for issuance may be used: laser printing, thermo transfer, ink-jet printing, photographic printing and laser engraving which efficiently is absorbed into the layers of paper that carries the corresponding security characteristics. In order to secure the biographic data and the issuance data against misuse, it is compulsory to use hot seal or an equivalent lamination (as thinner as possible) with a device against copying in case laser printing, thermo or photographic techniques are used. Travel documents are issued in a machine readable format. The appearance of the biographical data shall be in line with the specifications contained in part 1 of the ICAO 9303 document, while the issuance procedure shall be in line with the specifications for machine readable documents.”

Given the aforementioned, according to the Court the statement in the initiative that the contested provisions enabled the state as an economic subject to carry out an economic activity – photographing -, and with a monopolistic conduct on the market obtained profit to the detriment of other economic subjects carrying out the photographing activity, may not be sustained. Namely, the photographing with the special standards for the purposes of issuing passports is a biometrical characteristic and is an integral part of the administrative procedure and not photographing as an economic activity to which solely market laws apply.

For these reasons, the Court found that there may not be raised the question of concordance of the contested provisions in the Law and Rulebook with Article 55 of the Constitution of the Republic of Macedonia, to which the statements in the initiative refer.

5. On the basis of the aforementioned, the Court decided as in item 1 of the present Resolution.

6. The Court passed the present Resolution with a majority vote in the following composition: the President of the Court Dr Trendafil Ivanovski, and the judges: Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Branko Naumoski, Mr Igor Spirovski and Dr Zoran Sulejmanov.

U.no.220/2007
13 March 2008
S k o p j e
lk

PRESIDENT
of the Constitutional Court of
the Republic of Macedonia
Dr Trendafil Ivanovski