U.no.133/2005

(Unofficial translation)

On the basis of Article 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Rules of Procedure of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 24 October 2007, the Constitutional Court of the Republic of Macedonia passed the following

DECISION

1. – Article 4 in the parts: “and are the majority in that local self-government unit” and “constantly”;

– Article 5 in the parts: “and are the majority in that local self-government unit”, “state bodies, public services and legal entities founded by the state” and “and other infrastructural facilities”;
Line 3 of Article 5 in the part: “and others”;
Lines 4 and 5 of Article 5;

– Article 6 paragraph 1 in the part: “and are the majority in that local self-government unit”;
Line 1 in paragraph 1 of Article 6 in the parts: “in international meetings” and “political”;
Line 2 in paragraph 1 of Article 6 in the part: “political”, and

– Article 8 in the part: “and are the majority in that local self-government unit”, from the Law on the Use of the Flags of the Communities in the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.58/2005) ARE REPEALED.

2. This Decision shall be published in the »Official Gazette of the Republic of Macedonia«.

3. The Constitutional Court of the Republic of Macedonia with its Resolution U.no.133/2005 of 6 June 2007, upon the initiative submitted by Tome Todorovski from Sveti Nikole, Georgi Naumov from Skopje, VMRO – National Party (VMRO – Narodna Partijia), Legue for Democracy (Liga za demokratija) and Macedonian People’s Party (Makedonska Narodna Partija) instigated proceedings for the appraisal of the constitutionality of certain provisions and parts of provisions of the Law on the Use of the Flags of the Communities in the Republic of Macedonia noted in item 1 of the present Decision, since a well-founded question was raised as to their concordance with Article 1, Article 2, Article 5, Article 8 paragraph 1 line 3, Article 9, paragraph 2 of the Constitution, as well as with the Amendment VIII of the Constitution of the Republic of Macedonia.

4. At its session the Court found that in line with the contents of Article 1 of the Law on the Use of the Flags of the Communities in the Republic of Macedonia, this Law regulates the right and the manner of use of the flags through which the communities in the Republic of Macedonia express their identity and specifics.

Under Article 2 of the Law, the communities in the Republic of Macedonia have the right to use a flag, for the purposes of expressing their identity and specifics (paragraph 1). A “flag” in the sense of paragraph 1 of this Article means a flag that the communities have chosen and use as a flag to express their identity and specifics (paragraph 2).

Under Article 3 of the Law, the communities in the Republic of Macedonia use the flag with which they express their identity and specifics in the public, official and private life in a manner defined by this Law.

Under Article 4 of the Law, in the local self-government units where there are citizens who are members of the community and are the majority of that local self-government unit, in line with Article 2 of this Law, the flag of the Republic of Macedonia and the flag of that community are constantly raised in front of and inside the facilities of the bodies of local self-government units.

Under Article 5 of the Law, in the local self-government units in which citizens who are members of the community and are the majority in that local self-government unit live, in line with Article 2 of this Law, in front of and inside the facilities of the state bodies, public services and legal entities founded by the local self-government units, on the streets, at the squares and other infrastructural facilities, the flag of that community is hoisted in addition to the flag of the Republic of Macedonia:

– on days of national and other holidays of the Republic of Macedonia defined by law;
– on days of holidays of the communities;
– on days of municipal and other holidays defined by a decision of the council of the local self-government unit;
– when welcoming or farewell the President of the Republic of Macedonia, the President of the Assembly of the Republic of Macedonia and the President and members of the Government of the Republic of Macedonia; and
– in an official visit of a President or Prime Minister of a foreign state, as well as a sovereign or a high representative of the international community.

Under Article 6 paragraph 1 of the Law, in the local self-government unit in which citizens who are members of the community and are the majority in that local self-government unit live, in line with Article 2 of this Law, if the flag of that community is hoisted the flag of the Republic of Macedonia is also hoisted:

– in international meetings, competitions and other gatherings (political, scholarly, cultural-artistic, sport, etc.) in which the local self-government unit is the organiser, participant or is represented, in line with the rules and the practice of holding such gatherings; and
– at celebrations, ceremonies and other political, cultural, sport and similar manifestations that are significant for the local self-government unit.

Under paragraph 2 of the same provision of the Law, in the cases of paragraph 1 of this Article, the flags are hoisted at the same time in front of and inside the facilities in which meetings, competitions, gatherings, celebrations, ceremonies, and manifestations are held.

Under Article 7 of the Law, the members of the communities in the Republic of Macedonia have the right to use the flag through which they express their identity and specifics in their private life and when holding cultural, sport, and other performances that are organised by the members of the communities in the Republic of Macedonia.

Under Article 8 of the Law, in the local self-government unit in which citizens who are members of the community and are the majority in that local self-government unit live, the flag of the Republic of Macedonia and the flag of that community are hoisted in the following manner:

– when the flag of the Republic of Macedonia is hoisted together with the flag of the community and the flag of the local self-government unit, the flag of the Republic of Macedonia is hoisted in the middle, while the flag of the community is two meters to the right, as viewed from the front, and the flag of the local self-government unit is two meters to the left from the national flag;
– when the flag of the Republic of Macedonia is hoisted together with the flag of the community, the flag of the community is to the right, as viewed from the front, from the flag of the Republic of Macedonia; and
– when more than three flags are hoisted, the flag of the Republic of Macedonia shall be the first one in the row.

Under Article 9 of the Law, the Council of the local self-government adopts a decision determining the competent body for the hoisting of the flags in line with Articles 5 and 6 of this Law.

Articles 10, 11 and 12 of the Law contain the penal provisions, which define the amount of the fine for the cases in which the legal entity or the responsible person in the legal entity have made a violation by acting in contradiction with Articles 4, 5, 6 or 8 of this Law.

Article 13 of the Law, as the final provision, envisages that this law enters into force on the eighth day from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

5. Under Article 1 of the Constitution, the Republic of Macedonia is a sovereign, independent, democratic and social state (paragraph 1). The sovereignty of the Republic of Macedonia is indivisible, inalienable and non-transferable (paragraph 2).

Under Article 2 paragraph 1 of the Constitution, the sovereignty in the Republic of Macedonia derives from the citizens and belongs to the citizens.

Under Article 5 of the Constitution, the state symbols of the Republic of Macedonia are the coat-of-arms, the flag and the national anthem (paragraph 1). The coat-of-arms, the flag and the national anthem of the Republic of Macedonia are regulated by law which is adopted by a two-thirds majority vote of the total number of representatives in the Assembly (paragraph 2).

Under Article 8, paragraph 1, lines 3 and 11 of the Constitution, the rule of law and the respect for the generally accepted norms of international law are fundamental values of the constitutional order of the Republic of Macedonia.

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

Amendment VIII of the Constitution (“Official Gazette of the Republic of Macedonia”, no.91/2001) replaces Article 48 of the Constitution and it reads as follows:

The members of the communities have a right to freely express, foster and develop their identity and the specifics of their communities and to use the symbols of their community (paragraph 1). The Republic guarantees the protection of the ethnic, cultural, linguistic and religious identity of all communities (paragraph 2). The members of the communities have a right to establish cultural, artistic and educational institutions, as well as scholarly and other associations for the expression, fostering and development of their identity (paragraph 3). The members of the communities have a right to instruction in their language in primary and secondary education, in a manner defined by law. In schools where education is carried out in another language, the Macedonian language is also studied (paragraph 4).

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

Under item 2 of Amendment X to the Constitution, the laws that directly affect the culture, the use of the languages, the education, personal documents and the use of the symbols are decided by the Assembly with a majority vote of the present representatives, whereby there must be a majority vote of the present representatives who belong to the communities that are not the majority in the Republic of Macedonia. The dispute in connection with the application of this provision is decided by the Committee for Relations among the Communities.

Under Article 118 of the Constitution, the international agreements ratified in accordance with the Constitution are part of the internal legal order of the Republic of Macedonia and may not be changed by law.

The Law on Ratification of the Framework Convention for the Protection of National Minorities was published in the “Official Gazette of the Republic of Macedonia”, no.11/1997.

In line with Article 5 paragraph 1 of the Framework Convention, the parties undertake upon themselves to promote the conditions in order to enable the members of national minorities to maintain and develop their culture, as well as to maintain the essential elements of their identity, religion, language, traditions, and cultural heritage.

Under Article 20 of the Framework Convention, in the exercise of the rights and freedoms deriving from the principles noted in this Framework Convention, the members of national minorities observe the national legislation and the rights of others, notably the rights of the members of the majority or of other national minorities.

In line with Article 21 of the Framework Convention, nothing in this Convention shall be interpreted as to giving right to undertake activities or to act contrary to the fundamental principles of international law and notably of sovereign equality, territorial integrity and political independence of states.

6. From the content of item 1 of Amendment VIII to the Constitution, it derives that the members of the communities have a right to use the symbols of their communities in order to express, foster and develop their identity and the specifics of their communities.

The Amendment determines the right, but however, it does not further work out the issue regarding the types of symbols, their description, the type of the act in which this right should be regulated, as well as the manner of use of the symbols of the members of the communities.

Therefore, the Law which contains provisions and parts of provisions which are subject of constitutional review has its constitutional ground in Amendment VIII to the Constitution, that is, the members of the communities that are not the majority in the Republic of Macedonia have a constitutionally defined right to use the symbols of their community for the purposes of expressing, fostering and developing their identity and the specifics of their communities. This for a reason that Amendment VIII to the Constitution, based on the systemic setup in the Constitution, is in Part II: BASIC FREEDOMS AND RIGHTS OF THE INDIVIDUAL AND CITIZEN, subtitled: 2. Economic, social and cultural rights, from where it derives that such envisaged democratic right is on an equal footing with the other prescribed and guaranteed fundamental human freedoms and rights. Actually, this right is not unknown even in the former constitutional systems in the Republic of Macedonia in the so far development of democracy as a political process.

In the analysis of the conformity of the contested provisions and part of provisions of the Law, the Court dwelled also on the content of the provisions from the Vienna Convention on Consular Relations, to which the Republic of Macedonia acceded with the Decision no.23-2185/1 of 28 July 1993 (“Official Gazette of the Republic of Macedonia”, no.48/1993).

Namely, Article 29 of the Convention regulates the use of the national flags and coat-of-arms of foreign states. Under paragraph 1 of this article, the sending state is given a right to use its national flag and coat-of-arms in the receiving state. Under paragraph 2, it is allowed to hoist the national flag of the sending state and to raise its coat-of-arms at the facility where the consular mission is housed, as well as at the residence of the chief of the consular mission and his means of transportation when in official use. Under paragraph 3, in the exercise of the rights of paragraph 1 of this article attention must be paid to the laws, regulations and customs of the receiving state.

From the content of the noted provision, as well as from the whole text of the Convention, it arises that the Signatory States have not envisaged a direct prohibition or reservation for the use of their flag, as state symbol, for purposes that are not governed by this Convention. As a matter of fact, the hoisting of a flag of another state for the situations in the Convention is aimed at expressing promotion of friendly relations between states by observing their differences in the constitutional and social structure.

Hence, the selection of a flag of another state as a flag which will serve to symbolise identity and specifics of certain group of members of communities that are not the majority in the Republic of Macedonia, is not disputable for the Court, since such chosen flag could not threaten the sovereignty and state integrity of the Republic of Macedonia, as long as in its use will mean only expression of a belonging to certain community in the function of Amendment VIII to the Constitution.

The question as to the conformity with the Constitution could be raised the moment when the use of such chosen flag would not mean belonging to certain community, but belonging to another state. That is still a question that could be considered through the appraisal of the constitutionality of certain parts of Articles 4, 5, 6 and 8 of the Law, which govern the use of the flag of the members of the communities along with the flag of the Republic of Macedonia in front of certain facilities, on the occasion of certain events, meetings, happening, etc.

7. Taking again as a starting point the content of Amendment VIII to the Constitution, it arises that it does not provide for a right of the members of the communities to use symbols based on their percentaged representation at the level of the local self-government unit, but such right is given to all the members of the communities irrespective of their percentaged representation.

Accordingly, in view of Articles 4, 5, 6 and 8 of the Law which envisage the right to use a flag only for the citizens that are members of the communities that are the majority in the local self-government unit, according to the Court, there is a violation of the Amendment VIII to the Constitution, in which the right to use the symbols of the members of the communities is not connected with their percentaged representation.

As a result of this determination, noted parts of Articles 4, 5, 6 and 8 of the Law, are not in accordance with the Constitution also for a reason that the legislator in that way puts into privileged position the citizens who are members of the communities that are the majority in a concrete local self-government unit, in view of the other members that are not the majority. This especially if one bears in mind that the determination of the Constitution in Amendment VIII is to enable all members of the communities in the Republic of Macedonia, and not only those who are the majority to freely express, foster and develop their identity and the specifics of their communities, which in itself eventually contains the principle of equality of the members of all communities before the Constitution and laws, enshrined in Article 9 of the Constitution.

As a matter of fact, Amendment IV to the Constitution, which replaces the Preamble of the Constitution, inter alia regulates that the citizens of the Republic of Macedonia, the Macedonian people, as well as the citizens living within its borders and are part of the Albanian people, Turkish people, Vlach people, Serb people, Roma people, Bosniak people, and the others, equal in their rights and obligations for the wellbeing of the community-the Republic of Macedonia, decided to constitute the Republic of Macedonia as an independent, sovereign state with the intention to establish and reinforce the rule of law, to guarantee human rights and civil freedoms, to ensure peace and coexistence, social justice, economic wellbeing, and prosperity in the life of the individual and the community.

Hence, from the content of Amendment IV and Amendment VIII to the Constitution, it arises that the Republic of Macedonia is determined through the rule of law to build itself as a sovereign state based on multiethnic ground in which fundamental freedoms and rights have a significant position, among which are also the rights of all the members of the communities to use the symbols of their community for the purposes of expressing, fostering and developing their identity.

The Court further took into consideration that the Constitution in Article 5 and Amendment VIII differentiates between the flag as the symbol of the state and the symbols of the members of the communities, and such difference also derives from the legal provisions, notably Article 8 of the Law which takes account of the honorary position that the flag of the Republic of Macedonia should have in situations when both the state flag and the flag of the members of the communities are hoisted. Thereby, the flag of the members of the communities in accordance with Amendment VIII to the Constitution, in Articles 1, 2, and 3 of the Law is defined as a symbol of expressing the identity and the specifics of the members of the communities.

The Court also took into consideration that the observance of the generally accepted norms of international law is one of the fundamental values of the constitutional order of the Republic of Macedonia, from where derives the right of national minorities, that is in our case the members of the communities, to freely express, foster and develop their identity and specifics.

Therefore, respecting the right of the members of the communities to use their symbols in order to express, foster and develop their identity, defined as such in Amendment VIII to the Constitution, but also in line with the provisions of the Framework Convention for the Protection of National Minorities, the Court found that the Constitution of the Republic of Macedonia extended the rights of the members of the communities, unlike the international acts that are an integral part of the internal legal order, despite the fact that in the international acts, including the noted Convention, there is no international standard which in the body of rights of communities, governs the right of national communities to use the right to their symbols.

Viewed from the aspect of the regulation of other countries governing this right at constitutional level, only the Republic of Slovenia in Article 64 paragraph 1 of the Constitution defines a right for the autochthonous Italian and Hungarian ethnic communities and their members to freely use their symbols with a view to preserving their national identity. From the aspect of legal regulation such a right is stipulated in the Republic of Slovenia and the Republic of Croatia.

However, in the assessment of the Court, irrespective of the lack of regulation in international acts regarding this right, it is undisputed that the members of the communities in the Republic of Macedonia may enjoy this constitutionally defined right, in a manner that will enable respect for the national legislation and the rights of others, notably the rights of the members of the majority or of the other members of communities, by restraining from activities that would be contrary to the basic principles of international law and notably sovereign equality, territorial integrity and political independence of the states in which such rights are guaranteed to them, which derives from the content of Articles 20 and 21 of the Framework Convention.

The aim of the noted provisions is to enable the protection of the sovereign equality, territorial integrity and political independence of the states in which there are members of national minorities against the enjoyment of the given right in a manner that would not question the sovereignty and territorial integrity, which certainly have their expression also through the state flag as the symbol of the state. Also, in the enjoyment of the given rights the members of the national communities should not elevate themselves with that right above the other members of the communities or above the rights of the members of the majority.

Hence, the enjoyment of the given constitutional right for the use of the flag of the members of the communities may not in any way be manifested in a manner that could cause a feeling of insufficient respect or absence of respect for the state flag, or the flag of the other members of communities.

However, certain parts of Article 4, Article 5, Article 6 and Article 8 of the Law, owing to the meaning of the symbolic of the use of the flag of the members of the communities in the given situations, notably due to the fact that such right is given only to the members of the communities that are the majority in the local self-government unit, but not to all the members of the communities, diverge the aim of Articles 20 and 21 of the Framework Convention.

Hence, regarding Article 4, Article 5 and Article 6 in the parts: “and are the majority in that local self-government unit”, as well as Article 8 in the part: “and are the majority in that local self-government unit” of the Law, the Court found that they are not in accordance with Amendment VIII, as well as with Article 9 paragraph 2 of the Constitution.

8. From the content of Article 1 of the Constitution, it stems that the Republic of Macedonia is constituted as a sovereign, independent, democratic and social state, in which the sovereignty of the Republic is indivisible, inalienable and non-transferable.

Hence, the Republic of Macedonia has the highest and unlimited authority and position in the state territory. The sovereignty of the state is a significant feature of the state with the aid of which it becomes independent from external factors (external sovereignty) and a higher factor in view of the internal subjects (internal sovereignty). Thereby, Article 2 of the Constitution of the Republic of Macedonia defines the citizen as the source and holder of sovereignty, and all the citizens living in the Republic being equal in their rights and obligations for the common good – the Republic of Macedonia.

Given the circumstance that the contested Law governs a simultaneous use of the flag of the Republic of Macedonia, as the state symbol, together with the flag of the members of the communities it was unavoidable to establish a relation between Articles 1, Article 2 and Article 5 of the Constitution with contested provisions of the Law.

Namely, based on Article 5 of the Constitution, the flag is one of the state symbols through which are expressed the state sovereignty and territorial integrity of the Republic of Macedonia, whereby the hoisting of the state flag and its use in general symbolises belonging to certain state in which manner state identity and state characteristics are expressed.

Unlike that, the use or hoisting of the flag of the members of the communities is aimed at symbolizing the belonging to certain community for the purposes of expressing the identity and specifics of that community.

Hence, it derived that parts of Article 4, Article 5 and Article 6 of the Law, governing the use of both symbols, same by their type but different by their essence, inside and in front of certain facilities on defined holidays, occasions and events can question the sovereignty of the Republic of Macedonia stipulated in Article 1 and Article 2 of the Constitution, as well as the state symbols as an expression of the state sovereignty stipulated in Article 5 of the Constitution.

a) Namely, from the content of Article 2 item 1 of the Law on Local Self-Government (“Official Gazette of the Republic of Macedonia”, no.5/2002), according to which the municipality is a local self-government unit, being the community of the inhabitants in certain area defined by law, it arises that the local self-government units are constituted, established for the purposes of meeting the needs of all inhabitants in that area.

Hence, the constant hoisting of the flag as a symbol in front of and inside the facilities of the bodies of the local self-government unit (the council and the mayor, under Article 31 of the Law on Local Self-Government), as defined in Article 4 of the contested Law, according to the Court, could only mean that in that area all the inhabitants, in an organised form exercise the authority and meet their needs locally.

Otherwise that would mean that in the multiethnic local self-government unit the power at local level is exercised only by those members of the communities whose flag is constantly hoisted in front of and inside the facilities envisaged by the Law. At the same time that will signify that sovereignty at local level, and even wider at state level, does not belong to all citizens, but only to those whose flag is constantly hoisted in the local self-government unit, which, according to the Court, is not in accordance with Article 1, Article 2 paragraph 1, and Article 5 of the Constitution.

Hence, if the local self-government unit is a community of the inhabitants in a certain area defined by law, in the opinion of the Court, in front of and inside the facilities of the local self-government unit the only flag that could be hoisted constantly is the municipal flag. The municipal flag as a symbol signifies that in that geographically defined territory live and act in an organised form, locally, the citizens of the Republic of Macedonia in that municipality, irrespective of their national belonging. As a matter of fact, Article 10 of the Law on Local Self-Government, under which the municipality may have its coat-of-arms and a flag as its symbols, serves for the purposes of realising that aim.

On the basis of what has been noted, in view of the part: “constantly” in Article 4 of the Law, the Court found that it is not in accordance with Article 1, Article 2 paragraph 1 and Article 5 of the Constitution, under which the sovereignty of the Republic of Macedonia is indivisible, derives from the citizens and belongs to all the citizens of the Republic of Macedonia, while the flag of the Republic of Macedonia is a state symbol.

b) Article 5 of the contested Law governs the raising of the flag of the Republic of Macedonia and the flag of the members of the communities that are the majority in the local self-government unit in front of and inside facilities of the state bodies, public services, and legal entities founded by the state and the public services and legal entities founded by the local self-government unit during holidays, events, meetings, visits of foreign statesmen or high representatives of the international community, etc.

From the content of Article 5 of the Law, inter alia it arises that the same provides for occasional hoisting of the flag of the members of the communities and the flag of the Republic of Macedonia in front of and inside the facilities of the state bodies, public services and legal entities founded by the state. As a result, a question is raised as to what is the symbolic of the use of the flag of the members of the communities in front of and inside these facilities.

Namely, if one takes into consideration that this case concerns the use of a flag in front of and inside facilities of state bodies, public services and legal entities founded by the state, in the assessment of the Court, it is constitutionally justified to hoist only the state flag as an expression of state sovereignty, but not the flag of the members of the communities as an expression of the identity and specifics of the communities.

Hence, as to the part: “state bodies, public services and legal entities founded by the state” of Article 5 of the Law, the Court determined that it is not in concordance with Article 1, Article 2 paragraph 2 and Amendment VIII to the Constitution.

c) Furthermore, regarding the part: “and other infrastructural facilities” of the same article in the Law, in the assessment of the Court there is a violation of Article 8 paragraph 1 line 3 of the Constitution.

Namely, if one takes into consideration that the expression “and other infrastructural facilities” encompasses, in addition to the specifically defined facilities, hoisting the flags in any other facility having an infrastructural character, it means that the flags are hoisted at: barracks, border crossing points, theatres, railways, water supply systems, old people’s homes, parks, museums, etc., where on the occasion of the events envisaged in Article 5 paragraph 1 of the Law in front of and inside each facility built by human hand, that is intended for public needs, the state flag and the flag of the members of the communities will be hoisted.

In the assessment of the Court, it is unclear why the legislator, after this exhaustive and all-inclusive enumeration of the infrastructural facilities in front of and inside of which the state flag and the flag of the members of the communities are hoisted, gave such a general formulation – “and other infrastructural facilities”, which makes unclear the aim of such normative technique.

Hence, according to the Court, this incompletness and arbitrariness of the norm in Article 5 of the Law is not in conformity with Article 8 paragraph 1 line 3 of the Constitution and the rule of law as a fundamental value of the constitutional order. This for a reason that in order to fully realise this fundamental value it is necessary for the norms to be clear, complete and unambiguous, whereby there will be no possibility left for arbitrariness in the interpretation and their application.

This broad and partial normative effort is present also in the part: “and others” of Article 5 line 3 of the Law. Thereby, the Court finds it as undoubted to hoist the flag of the members of the communities during the holidays of the communities, in which moments the same symbolises that certain members of the community have their own holiday as an expression of their identity and specifics. However, in a situation when the legal provision specifically enumerates all possible holidays, such as state, municipal and religious, the Court does not find a constitutional justification for the noted formulation “and others” and the left possibility in addition to the specifically enumerated holidays, the flag of the members of the communities to be hoisted also during undefined, undetermined holidays.

Hence, regarding the part “and others” of Article 5 of the Law, from the aforementioned reasons, the Court found that it is not in accordance with Article 8 paragraph 1 line 3 of the Constitution and the rule of law as a fundamental value of the constitutional order of the Republic of Macedonia.

d) The Court finds it undoubted to hoist the state flag on the occasion of welcoming and farewell the President of the Republic of Macedonia, as a person representing the Republic of Macedonia in the country and outside it and as the supreme commander of the armed forces of the Republic of Macedonia; the President of the Assembly of the Republic of Macedonia, as the person representing the highest representative body and the legislative power, as well as the President of the Government of the Republic of Macedonia, as the person representing the executive power (Article 5 line 4). This for a reason that the functions noted according to the setup in the constitutional system unavoidably are subject to showing respect and to corresponding honours and the sovereignty and statehood of the Republic of Macedonia is expressed through the persons carrying out these functions.

Thereby, the Court took into consideration that the flag is the symbol of each state through which its internal and external sovereignty and individuality are determined, from where the citizens of the Republic of Macedonia irrespective of their belonging, have a general civil duty to respect this state symbol. Consequently, the regulations governing the matter of the use of the state flag with any other flag, including the flag of the members of the communities, must meet the criteria for fulfilling the noted function and civil duty.

However, in case when welcoming or sending off the holders of the highest state functions or during visits of foreign statesmen or high representatives of the international community (line 5) the flag of the members of the communities is hoisted, the hoisting of the flag of the members of the communities may not gain the treatment of a flag with which the identity of the members of the communities is expressed and fostered, since on such occasions the identity of the communities may not be expressed, but a state sovereignty. On the occasion of such events, in the assessment of the Court it is constitutionally justified to hoist only the state flag.

Hence, in view of lines 4 and 5 of Article 5 in the Law, the Court found that they are not in conformity with Article 1, Article 2 paragraph 1, and Article 5 of the Constitution, which defines the coat-of-arms, the flag and the national anthem of the Republic of Macedonia as state symbols.

e) Article 6 of the contested Law provides for concomitant hoisting of the flag of the Republic of Macedonia and the flag of the members of the communities that are the majority in the local self-government unit in front of and inside facilities in which are held international meetings, competitions, gatherings, celebrations, ceremonies and manifestations and in the cases when the local self-government unit is the organiser, takes part or is represented or when the noted events and occasions are of significance for the local self-government unit.

Thereby, according to the Court, the symbolic of hoisting a flag of the members of the communities at an international political meeting or international political manifestation has no constitutional justification if one takes into consideration that under the concept of the Constitution of the Republic of Macedonia that right is exclusively within the competence of the state and its bodies, that is, within the competence of the President of the Republic of Macedonia, the Assembly of the Republic of Macedonia and the Government of the Republic of Macedonia that may appear as the organisers or may take part at international political meetings. Also, according to the list of competences of the local self-government units defined in Article 22 of the Law on Local Self-Government, the same may not appear as the organiser or participant in an international political meeting.

Also, the Court could not perceive constitutional justification of the use of the flag of the members of the communities at an international sport event in which the state should defend the state colours internationally, thereby expressing the identity and sovereignty of the Republic of Macedonia.

In the assessment of the Court, the members of the communities have an undisputed right to hoist their flag together with the flag of the Republic of Macedonia in the cases when competitions or other meetings of cultural, artistic or sport character are organised, or celebrations and ceremonies having as its aim expressing, fostering and developing the identity of the members of the communities. This for a reason that the hoisted flag of the members of the communities in such cases will reflect their specifics and identity, and will enable to differentiate them from the other participants in such manifestations for the purposes of which the flags are actually used as symbols.

However, that cannot be said also for international political meetings, international competitions, international scholarly gatherings at which solely the Republic of Macedonia may be represented or take part with a view to expressing, fostering and developing the identity of the Republic of Macedonia, as a sovereign state.

Hence, in view of the parts: “international meetings”, and “political”, in line 1 paragraph 1 of Article 6, as well as the part: “political”, in line 2 of the same article in the Law, the Court found that they are not in conformity with Article 1, Article 2 paragraph 1, Article 5, and Amendment VIII to the Constitution.

9. On the basis of the summarised analysis of the constitutional and legislative provisions, international acts and comparative law, the Court decided as in item 1 of this Decision.

10. The Court passed this decision with a majority vote in the following composition: the President of the Court Mr. Mahmut Yusufi, and the judges: Mr. Trendafil Ivanovski, Ph.D., Mrs. Mirjana Lazarova Trajkovska, LL.M., Mrs. Vera Markova, Mr. Branko Naumoski, Mr. Bajram Polozani, Ph.D., Mr. Igor Spirovski, and Mr. Zoran Sulejmanov, Ph.D.

U.no.133/2005
24 October 2007
S k o p j e

Replacing the President
of the Constitutional Court of the Republic of Macedonia
Branko Naumoski