Based on Articles 110 and 112 of the Constitution of the Republic of North Macedonia and Article 70 of the Rules of Procedure of the Constitutional Court of the Republic of North Macedonia (“Official Gazette of the Republic of Macedonia” number 70/1992 and “Official Gazette of the Republic of North Macedonia” number 202/2019, 256/2020 and 65/2021), at the session held on 5 December 2022, the Constitutional Court of the Republic of North Macedonia, composed of Dobrila Kacarska, President of the Court and the judges Naser Ajdari, Tatjana Vasikj-Bozadzieva LLM, Elizabeta Dukovska, Osman Kadriu LLD, Darko Kostadinovski LLD, and Fatmir Skender LLM, adopted the following
DECISION
1. Article 41-a, Paragraph 1 in the section “public” and Paragraph 3 in the section “the public” of the Law on Secondary Education (“Official Gazette of the Republic of Macedonia” no. 44/1995, 24/1996, 34/1996 35/1997, 82/1999, 29/2002, 40/2003, 42/2003, 67/2004, 55/2005, 113/2005, 35/2006, 30/2007, 49/2007, 81/2008, 92/ 2008, 33/2010, 116/2010, 156/2010, 18/2011, 42/2011, 51/2011, 6/2012, 100/2012, 24/2013, 41/2014, 116/2014, 135/2014, 10/2015, 98/2015, 145/2015, 30/2016, 127/2016, 67/2017, 64/2018 and “Official Gazette of the Republic of North Macedonia” No. 229/2020) are herewith REPEALED.
2. This Decision produces legal effect from the day of its publication in the “Official Gazette of the Republic of North Macedonia”.
Argumentation
I
In response to the petition of Luka Pavićević from Skopje, the Constitutional Court of the Republic of North Macedonia adopted Decision U. No. 81/2023 from 3 October 2023, to initiate a procedure for reviewing the constitutionality of sections of the particular article indicated in the purview of this decision, due to doubt for violation of Article 9 Paragraph 2 and Article 44 Paragraph 2 of the Constitution.
II
During the session, the Court determined that in Article 41-a of the Law on Secondary Education, in Paragraphs 1 and 3, which include the contested parts, the following is stated:
(1) Free transportation to the school is provided for the pupil who has the status of a full-time pupil in a public secondary school, assuming the pupil does not reside in a dormitory.
(3) As an exception to Paragraph (2) of this Article, if in the municipality where the pupil lives, when enrolling in the first year of education, all places in the school, i.e. the schools in the municipality, are filled, the pupil has the right to free transportation to the public secondary school in another municipality in which the pupil is enrolled, if the place of residence is at least 2.5 kilometres away and if the pupil attends classes.
III
As stated in Article 8 Paragraph 1 Indent 3 of the Constitution, the rule of law is one of the core principles constitutional order of the Republic of North Macedonia.
Article 9 of the Constitution states that the citizens of the Republic of North Macedonia are equal in freedoms and rights regardless of sex, race, the colour of the skin, national and social origin, political and religious belief, property and social status. Citizens are equal before the Constitution and laws.
As stated in Article 44 of the Constitution, everyone has the right to education. Education is available to everyone under equal conditions. Primary education is compulsory and provided free of charge.
In accordance with Article 51 of the Constitution, in the Republic of North Macedonia, the laws must comply with the Constitution and all other provisions with the Constitution and the law. Everyone is obliged to respect the Constitution and laws.
Article 1 of the Law on Secondary Education states that this law regulates the administration, operation, and structure of secondary education in the Republic of North Macedonia, as part of the system of upbringing and education.
As stated in Article 2 of the corresponding law, plans and programmes for secondary school and vocational education are implemented in secondary education. Secondary education may be obtained in secondary schools that are organized as public secondary schools (municipal secondary school, i.e. secondary school of the City of Skopje and state secondary school) and private secondary schools. State secondary schools were initially established to execute secondary education plans and programmes for specific pipil categories in which the state has a special interest. The secondary school is performing a public service by engaging in an activity that is of public interest. The secondary school is officially recognised as a legal body and is listed in the Central Registry in the Republic of North Macedonia.
Article 10 of the “Establishment and Termination of Secondary Schools” Chapter II of the Law on Secondary Education states the following:
The municipality may establish a secondary municipal school. The Government of the Republic of Macedonia provides its opinion before the Council of the municipality adopts a decision to establish a secondary municipal school. The Council of the City of Skopje has the authority to establish a secondary school. The decision to establish a secondary school in the City of Skopje is adopted by the Council of the City of Skopje following a proposal by the Council of the Municipality, and following obtained opinion from the Government. The Government establishes a state secondary school.
This law allows domestic and foreign legal and physical entities to establish private secondary schools upon authorization. The Municipality, the City of Skopje, i.e the Government, upon the proposal of the Bureau, or the Centre for Vocational Education and Training, and approval by the minister, may also establish an international public school with curricula and programmes in one of the foreign world languages (English, French, or German).
According to Article 13 of the same law, the Decision of the Government of the Republic of Macedonia to approve the establishment of a private secondary school establishes the following: the educational field of study, or the type of secondary education for which the private school was established; The teaching personnel, the equipment, the space required in accordance with educational standards and norms; the number of pupils; the language that will be employed for teaching; the schedule programme for the educational activities and the beginning of the work of the private school.
Article 41, in Chapter V of the Law, entitled “Pupils”, regulates the status of the pupil.
In accordance with the content of this Article of the Law, enrolling in secondary school grants the status of a pupil in secondary education. The status of full-time pupil can only be acquired in one secondary school. Part-time pupils are individuals who acquire education through self-education, by taking exams for a specific plan and programme in secondary school. An individual may enrol as a part-time pupil if they meet one of the following requirements: to be over 17, to be on extended sick leave, to have a pedagogical measure of expulsion from the school, to be employed, and in other situations specified by the statute of the secondary school.
The contested provisions of Article 41-a of the Law on Secondary Education provide that, in the event that a pupil does not reside in a dormitory, free transportation to the school is provided. The pupil in Paragraph (1) of this Article is entitled to free transportation if the residence is at least 2.5 kilometres from the secondary school where the pupil is enrolled and attends classes and if the chosen profession and profile are not represented in the municipality where the pupil lives. Except as stated in Paragraph (2) of this Article, if all available places in the school, i.e. the schools in the municipality where the pupil resides are taken when enrolling in the first year of education, then the pupil has the right to free transportation to the public secondary school in another municipality where they are enrolled if the residence is at least 2.5 kilometres distant and if the pupil attends classes. For the pupil who uses accommodation and meals in a pupil dormitory, no free transportation to the home residence is organized during weekends, with the exception of pupils with special education needs. Pupils with special educational needs and accompanying persons have the right to free transportation regardless of the distance from their place of residence to the state secondary school in which the pupil is enrolled and attends classes. The Minister determines the method of organizing the free transportation of pupils, pupils with special educational needs and persons accompanying them, from the place of residence to the public secondary school.
According to the analysis of the aforementioned constitutional and legal provisions, the rule of law is a fundamental value of the constitutional order of the Republic of Macedonia, and the equality of citizens under the Constitution and the laws is constitutionally guaranteed.
As established by the law in its entirety, secondary education is defined as an activity of public interest carried out as a public service, and the citizens of the Republic of North Macedonia have the right to education in secondary schools in the Republic of North Macedonia under equal conditions. The Law on Secondary Education defines secondary schools as public (municipal secondary school, i.e., secondary school of the City of Skopje or state secondary school) or private secondary schools. Therefore, individuals who have the status of a full-time pupil in secondary school, as defined by Article 41 of the Law, should be equal and should have the same rights and obligations regardless of whether they attend public or private secondary schools.
However, the Law on Secondary Education, namely Article 41-a Paragraph 1 in the section “public”, and Paragraph 3 in the section “the public”, favours and singles out full-time pupils from public secondary schools, and offers free transportation to the school if they do not reside in a dormitory or if the residence is at least 2.5 kilometres from the secondary school where the pupil is enrolled and attends classes, and if the chosen profession (profile) is not represented in the municipality where the pupil lives.
Given the stated legal and factual situation, the initiative raises the question of whether it is constitutional that only full-time pupils of a public secondary school have the right to free transportation and that full-time pupils of a private secondary school are excluded from using this right and whether the principle of the rule of law and the equality of citizens under the Constitution, which are constitutionally determined principles, are not thereby violated.
In response to this inquiry, the Court determined that it is important to remember that the Law on Secondary Education establishes a status of the pupil in a manner that equals a pupil in a public secondary school with a pupil of a private secondary school according to the formulation in Article 41 of the Law on Secondary Education, it is therefore necessary that all pupils have the same rights and obligations, given their status as secondary school pupils, that is, regardless of whether they attend a public or private secondary school, the legislator has to determine the rights and obligations for all full-time secondary school pupils in the same manner.
According to the Court, the legal provision of Article 41-a Paragraph 1 in the section “public” and Paragraph 3 in the section “the public” of the Law on Secondary Education is not in compliance with the constitutional principle of equality, given that it allows the unequal treatment of individuals with the same legal status, that is, the status of full-time pupils in secondary schools, which serves as the foundation for offering them equal educational opportunities.
For the specific reason that, in accordance with Article 9 Paragraph 2, citizens are equal before the Constitution and the laws, the Court holds that there is no constitutional basis for treating differently full-time pupils in secondary education.
According to the Court, it implies that the contested sections of the legal provision of Article 41-a violate Article 44 Paragraph 2 of the Constitution, which states that education is accessible to everyone under equal conditions. According to the Court, this legal regulation places full-time pupils in private secondary schools in an unequal position and prevents them from receiving an education under equal conditions with that of other pupils from secondary schools, which is constitutionally inadmissible.
The Court determined that the contested sections of Article 41-a, Paragraph 1 in the section “public” and Paragraph 3 in the section “the public” of the Law on Secondary Education, by the petitioner and on the initiative of the Constitutional Court, have no constitutional foundation, that is, it violates the constitutional guarantee for the equality of citizens in exercising their rights, under the same conditions and at the same position. With regard to the contested sections of Article 41-a Paragraphs 1 and 3 of the Law, full-time pupils in secondary education are placed in an unequal position, depending on whether they attend public or private secondary schools. In this particular instance, the Court held that all full-time pupils in secondary schools in the aforementioned cases, regardless if attending a public or private secondary school, should be entitled to free transportation.
The legislator, in this particular case, acted differently for full-time pupils in secondary education, who are in an equal legal position, regarding the right to use free transportation exclusively for full-time pupils from public secondary schools who do not reside in a dormitory or whose residence is at least 2.5 kilometres from the secondary school where the pupil is enrolled and attends classes, and if the chosen profession and profile is not represented in the municipality where the pupil lives, in relation to full-time pupils in private secondary schools.
According to the Court, this legislation establishes a different treatment for pupils in secondary education about their acquisition of the right to utilise free transportation in the cases at reference, which is contrary to Articles 9 Paragraph 2 and Article 44 Paragraph 2 of the Constitution, according to which there is no constitutional possibility for different treatment of pupils in secondary education, considering that, according to Article 9 Paragraph 2, citizens are equal under the Constitution and laws, and that education is accessible to everyone under equal conditions is constitutionally guaranteed. Consequently, the Court determined that Article 41-a, Paragraph 1 in the section “public” and Paragraph 3 in the section “the public” are not in compliance with Article 9 and Article 44, Paragraph 2 of the Constitution.
IV
Based on the above, the Court decided as in the dispositive of this Decision.
PRESIDENT
of the Constitutional Court
of the Republic of North Macedonia,
Dobrila Kacarska
Allegations in the initiative (Resolution on initiation of proceeding U. no. 81/2023):
According to the allegations from the initiative, the contested Article 41-a Paragraphs 1 and 2 of the Law on Secondary Education are not in compliance with Article 9 and Article 44 Paragraph 2 of the Constitution of the Republic of North Macedonia.
Specifically, the initiative claims that pupils from private secondary schools are treated unequally under Paragraphs 1 and 2 of the contested legal provision of Article 41-a of the Law on Secondary Education, in relation to pupils from public secondary schools, who despite their status as full-time pupils in secondary schools, do not have free bus transportation and thus are not provided with equal conditions in the process of access to education.
Additionally, the initiative states that the determination of the right to free transportation is based solely on whether they attend a public secondary school, whether their residence is at least 2.5 kilometres from the secondary school where they are enrolled and attend classes, and whether the selected profession and profile they have chosen is represented in the municipality in which they reside, is not in compliance with Article 44 Paragraph 2 of the Constitution. Considering that many of the mandatory educational obligations take place outside of school premises, therefore, the petitioner believes that pupils whose place of residence is less than 2.5 kilometres from the secondary school and who do not have the right to free transportation are in a subordinate position.
It is proposed, for the reasons outlined previously, that the Court initiate a procedure of reviewing Article 41-a Paragraphs 1 and 2 of the Law on Secondary Education are constitutional in light of the provisions of Article 9 paragraph 2 and Article 44 Paragraph 2 of the Constitution.