Constitutional Court of the Republic of North Macedonia
U.No.165/2024
Skopje, 25 June 2025
Pursuant to Article 110 Indent 3 of the Constitution of the Republic of North Macedonia, Article 70 Indent 2 and Article 78 Paragraph 2 of the Rules of Procedure of the Constitutional Court of the Republic of North Macedonia (“Official Gazette of the Republic of Macedonia” No. 70/1992 and “Official Gazette of the Republic of North Macedonia” Nos. 202/2019, 256/2020, and 65/2021), at the session held on 25 June 2025, the Constitutional Court of the Republic of North Macedonia, composed of Darko Kostadinovski LLD, President of the Court, and Judges Tatjana Vasikj-Bozadjieva LLM, Jadranka Dabovikj-Anastasovska LLD, Osman Kadriu LLD, Dobrila Kacarska, Ana Pavlovska-Daneva LLD, and Fatmir Skender LLM, adopted the following:
D E C I S I O N
1. The submission of Biljana Vankovska-Cvetkovska from Skopje, for the protection of the freedoms and rights under Article 110, Indent 3 of the Constitution of the Republic of North Macedonia, relating to the right to political activity and the prohibition of discrimination on the grounds of political affiliation, is hereby REJECTED.
2. This Decision shall be published in the “Official Gazette of the Republic of North Macedonia”.
Reasoning
I
Biljana Vankovska-Cvetkovska, in her capacity as a confirmed independent presidential candidate, submitted an application with the Constitutional Court of the Republic of North Macedonia seeking protection of the freedoms and rights under Article 110, Indent 3 of the Constitution, concerning the right to political activity and the prohibition of discrimination on the grounds of political affiliation, which she considers to have been violated by an act of the Agency for Audio and Audiovisual Media Services through the Guidelines for Broadcasters pertaining to the 2024 the Presidential and Parliamentary Elections, no. 01-1550/1 of 29 March 2024, adopted by the Agency for Audio and Audiovisual Media Services.
The applicant first states that the actual competence of the Constitutional Court is to provide constitutional-judicial protection of the freedoms and rights of citizens guaranteed by the Constitution against violations committed by public authorities. This protective role of the Constitutional Court reflects the fact that it is the guardian of constitutionalism in the Republic, expressed through the fundamental values of the constitutional order – the rule of law, political pluralism, and free, direct and democratic elections. At the core of constitutionalism lies the requirement that the actions of state authorities must not be voluntaristic, subjective or arbitrary. Accordingly, the purpose of the present application is to secure in concreto control over an arbitrary, voluntaristic and unlawful act of one of the state institutions most responsible in the process of conducting fair and democratic elections and ensuring political pluralism in the Republic – namely, the Agency for Audio and Audiovisual Media Services.
The applicant became aware of these acts on 29 March 2024 and considers that her constitutionally guaranteed subjective rights to political activity, equality before the law, and the prohibition of discrimination on grounds of political affiliation have been violated.
The application further provides a description of the act by which the aforementioned violation was allegedly committed by the Agency for Audio and Audiovisual Media Services and the State Election Commission through the Guidelines for Broadcasters pertaining to the 2024 the Presidential and Parliamentary Elections, no. 01-1550/1 of 29 March 2024, adopted as a general subordinate legislative act by the Agency for Audio and Audiovisual Media Services.
In the allegations, it is noted that, pursuant to Article “96-в” of the Electoral Code, the Agency for Audio and Audiovisual Media Services is obliged to carry out continuous monitoring and to oversee the electoral media presentation and programming services of broadcasters in the Republic of North Macedonia from the day elections are called until the completion of voting on election day. Within the scope of its competence and official duty, the Agency issued the contested Guidelines, intended to clarify to broadcasters the manner of applying the rules and restrictions laid down in the Electoral Code for the 2024 presidential and parliamentary elections, in particular establishing the allocation of minutes for paid political advertising to which presidential candidates and political parties are entitled during the election campaign.
The application reproduces in full Item 3 of the Guidelines for Broadcasters pertaining to the 2024 the Presidential and Parliamentary Elections, no. 01-1550/1 of 29 March 2024, adopted by the Agency for Audio and Audiovisual Media Services (published on the official website of the Agency for Audio and Audiovisual Media Services):
Item 3
“In accordance with the distribution of airtime assigned for paid political advertising, as laid down in Article “75-ѓ”, Paragraph 1, of the Electoral Code, the list submitters shall use the total of nine minutes and thirty seconds (00:09:30) per clock hour of aired programme in the following manner:
– Within the maximum of 4 minutes assigned for the two largest ruling political parties that won the most votes at the last parliamentary elections, broadcasters shall air the paid political advertising of the list submitters/presidential candidates Stevo Pendarovski, supported by the SDSM political party, and Bujar Osmani, supported by the DUI political party, respectively.
– Within the maximum of 4 minutes assigned for the two largest opposition political parties that won the most votes at the last parliamentary elections, broadcasters shall air the paid political advertising of the list submitters/presidential candidates Gordana Siljanovska-Davkova, supported by the political party of VMRO/DPMNE, and Arben Taravari, supported by the Alternativa and BESA Movement political parties, respectively.
– Within the maximum of 1 minute designated for the political parties in Parliament that did not win a sufficient number of MP seats at the last parliamentary elections to form a parliamentary group, broadcasters shall air the paid political advertising of the list submitters/presidential candidates Biljana Vankovska-Cvetkovska, supported by the LEFT (Levica) political party, and Stevcho Jakimovski, supported by the GROM political party, respectively;
– In the remaining 30 seconds assigned for the political parties or candidates that are not represented in Parliament, broadcasters shall air the paid political advertising of the list submitter/presidential candidate Maksim Dimitrievski, supported by the ZNAM political party.”
The applicant, Biljana Vankovska-Cvetkovska, considers that Item 3 of the Guidelines for Broadcasters pertaining to the 2024 the Presidential and Parliamentary Elections, no. 01-1550/1 of 29 March 2024, adopted as a general subordinate legislative act by the Agency for Audio and Audiovisual Media Services, constitutes discrimination on grounds of political affiliation and infringes her constitutionally guaranteed right to political activity. According to the applicant, the Guidelines violate the Electoral Code in the allocation of minutes for paid political advertising during the 2024 presidential elections, by means of an arbitrary and inaccurate interpretation of the provisions of the Electoral Code, and by a wrong determination of the factual situation with regard to the positioning of political parties in the Assembly of the Republic of North Macedonia, in contravention of imperative ius cogens norms. Item 3 of the Guidelines is based on an inapplicable and irrelevant legal provision in concreto, namely Article “75-ѓ” Paragraph 1 of the Electoral Code, which de jure and de facto is inapplicable to presidential elections in general, and particularly inapplicable to the 2024 presidential elections.
Article “75-ѓ” Paragraph 1 of the Electoral Code exclusively employs the term “parties” and regulates in detail the media time for paid political advertising (PPA) to which political parties are entitled during an election campaign, but not presidential candidates. In the 2024 presidential elections, out of a total of seven confirmed presidential candidates, as many as six, with the exception of Gordana Siljanovska-Davkova, who submitted her candidacy with parliamentary signatures – have acquired the legal status and treatment of independent candidates, since under the Electoral Code an independent candidate is a candidate for election as President, Member of Parliament, Mayor or Member of a Council who is supported by a group of voters (Article 2 Paragraph 1, Indent 7 of the Electoral Code). Accordingly, under the positive legal provisions of domestic law, six of the seven presidential candidates are civic/independent, and not party candidates. Indeed, in the very decisions of the State Election Commission, the correct formulation appears, namely that they are supported by a group of citizens, and not by parties. Therefore, while political support is one matter, the strict and precise legal formulation employed by the law is quite another, and must be consistently observed as an imperative ius cogens norm and binding legal regime, without scope for “creative solutions” on the part of the regulator, the Agency for Audio and Audiovisual Media Services.
Furthermore, in her application, the applicant argues that if one were to rely on Article “75-ѓ” Paragraph 1 of the Electoral Code, and be guided by its normative legal definitions, then all six independent presidential candidates, Stevo Pendarovski, Bujar Osmani, Arben Taravari, Biljana Vankovska-Cvetkovska, Maksim Dimitrievski and Stevcho Jakimovski , should fall within the category of “political parties not represented in the Assembly of the Republic of North Macedonia or candidates”, to whom, under Article “75-ѓ” Paragraph 1 of the Electoral Code, only a total of thirty seconds of broadcasting time may be allocated. According to her, such an outcome is absurd in itself.
The mechanism for allocation under Article “75-ѓ” Paragraph 1 of the Electoral Code undoubtedly reflects the principle of proportionality applicable to parliamentary, but by no means to presidential elections – since these are in fact two separate and entirely distinct electoral processes, qualitatively and substantively different (presidential and parliamentary elections), which share nothing in common except for a few days of overlap in the electoral campaign. Thus, for presidential elections – whereby a single-person organ is elected – a majoritarian system applies, with a constitutional census and two rounds of voting within a single electoral district every five years; whereas for parliamentary elections – whereby a collegial organ is elected – a proportional system applies, using the D’Hondt method for the allocation of mandates, without any census, in a single round of voting within six electoral districts every four years.
On the basis of the above principles, the Agency for Audio and Audiovisual Media Services was not entitled to allocate, through one mixed, hybrid, combined and so-called “single formula”, the media time for PPA for both the 2024 presidential and parliamentary elections in the same manner. Legally and nomotechnically, it is impossible to adopt a single set of Guidelines for two separate and entirely distinct electoral processes – the Agency was therefore obliged to adopt two separate Guidelines for broadcasters and PPA, each employing distinct applicable methodologies: one for the 2024 presidential elections and another for the 2024 parliamentary elections – just as, in fact, the President of the Assembly, ex lege, called the elections by two separate Resolutions, and not by one and the same.
By means of the conduct described above, the applicant submits that a violation has been committed of her constitutionally guaranteed subjective right to political activity, namely the right, as a citizen, actively to participate in political life through standing for public office and to be elected at free and democratic elections. Her political rights, as a confirmed candidate for President of the Republic, were acquired upon fulfilment of the conditions for presidential candidacy prescribed in Articles 80 and 81 of the Constitution of the Republic of North Macedonia, that is, with the support of at least 10,000 voters in the Republic of North Macedonia. A fundamental precondition for the exercise of her right to political activity and participation in these presidential elections is her access to the media and balanced media coverage of all political options and programmes. The healthy functioning of democracy and her right to political activity depend on the extent to which the electorate is able to familiarise itself with her programme and to make its choice on the basis of knowledge and information, which in turn depends on the information received by the electorate from the media.
The media/broadcaster, as an institution, nevertheless enjoys an inviolable position as a reliable primary source of news and information. It is therefore of inestimable importance for democracy in the Republic that all electoral candidates should enjoy equal and lawful access to the media, as the easiest and often the only means of access to voters. From this it follows that the Constitutional Court bears the duty to safeguard and guarantee democracy by ensuring legality in the distribution of available broadcasting time for paid political advertising for each candidate in the 2024 presidential elections. For these reasons, through conduct contrary to constitutional, statutory and procedural norms, which is gravely detrimental to fundamental constitutional values, the Agency for Audio and Audiovisual Media Services flagrantly and manifestly violated her constitutionally protected right to political activity, a fact which the Constitutional Court, acting in its capacity as a court of last resort, ought to acknowledge.
Furthermore, the applicant submits that through its manifestly unlawful conduct in respect of the allocation of time for media PPA for the 2024 presidential elections, the Agency for Audio and Audiovisual Media Services has engaged in clear and open discrimination on grounds of political affiliation and political opinion, thereby placing her in an unequal and unfavourable legal position regarding her political activity compared to the other presidential candidates, particularly those allotted greater broadcasting time. She argues that, as a confirmed candidate for President of the Republic, supported by the opposition parliamentary political party “Levica”, her political affiliation is notorious, and that she therefore clearly possesses the protected characteristics, i.e. the status indicator of “political affiliation”, as a potential ground for discrimination.
Accordingly, in the applicant’s view, the discriminatory conduct of the Agency for Audio and Audiovisual Media Services has been demonstrated, placing a political opponent of the Government and opposition candidate in a less favourable position compared to the other presidential candidates. The unconstitutional and unlawful conduct of the Agency, through the adoption of the contested Item 3 of the Guidelines, fully meets the criteria of conduct constituting direct discrimination on the discriminatory ground of political affiliation.
In view of the foregoing facts and legal arguments, the applicant proposes that the Constitutional Court adopt a decision establishing that Biljana Vankovska-Cvetkovska of Skopje has suffered a violation of her right to political activity and of the prohibition of discrimination on grounds of political affiliation within the meaning of Article 110, Indent 3 of the Constitution of the Republic of North Macedonia; that the Guidelines for Broadcasters pertaining to the 2024 the Presidential and Parliamentary Elections, no. 01-1550/1 of 29 March 2024, of the Agency for Audio and Audiovisual Media Services, be annulled; and that the Agency be ordered to adopt new Guidelines for broadcasters in which the broadcasting time for paid political advertising shall be divided equally among all seven candidates (81.5 seconds per candidate).
II
At the session, on the basis of the allegations set out in the application and the documentation submitted, the Court established the following facts:
By Resolution (Form No. 6a) No. 09-933/2 of 21 March 2024, the State Election Commission, pursuant to Article 67 Paragraph 3 of the Electoral Code (“Official Gazette of the Republic of Macedonia” Nos. 40/06, 136/08, 148/08, 155/08, 163/08, 44/11, 51/11, 142/12, 31/13, 34/13, 14/14, 30/14, 196/15, 35/16, 97/16, 99/16, 136/16, 142/16, 67/17, 25/17, 38/18, 99/18, 140/18, 27/19, and “Official Gazette of the Republic of North Macedonia” Nos. 98/19, 146/19, 42/20, 74/21, 215/21 and 58/24), confirmed the list of candidate for President of the Republic of North Macedonia, Biljana Vankovska-Cvetkovska, submitted upon the proposal of not less than 10,000 voters.
As a subject participating in the election campaign, she was entered in the Central Register under the name “For the Election Campaign for Biljana Vankovska-Cvetkovska for the 2024 Presidential Elections” with Unique Entity Identification Number 7748787 and Unique Tax Number 4032024561970, as evidenced by the Current Status of 13 March 2024 and the Confirmation of Registration of Beneficial Owners of 14 March 2024. In the section for authorised persons, Biljana Vankovska-Cvetkovska herself was registered as the authorised representative of the election campaign, while the authorised person for material and financial operations was Mr. Redzep Ismail.
Observing certain irregularities that could arise in the interpretation of constitutional and legal norms in the context of the 2024 presidential elections, Dimitar Apasiev submitted a complaint to the Agency for Audio and Audiovisual Media Services regarding the inappropriate application of provisions of the Electoral Code relating to paid political advertising for the presidential elections. In response, the Agency, in letter UPP No. 03-8 of 12 April 2024, stated:
“Article “75-ѓ” Paragraph 1 of the Electoral Code is particularly problematic, as it does not refer to participants in the election campaign who, pursuant to Article 70 of the Electoral Code, alone have the right to organise a campaign and the right to equal access and under equal conditions to use all forms of political propaganda, but rather to political parties (both ruling and opposition, parties without a parliamentary group, and parties not represented in the Assembly), and in each new electoral process, this provision repeatedly generates dilemmas and divergent interpretations. Apart from the fact that the provision is not adapted to the different types of electoral processes (presidential, parliamentary, and local), it does not ensure equal opportunities for participants in the elections, but instead favours the four parties from the government and opposition that obtained the highest number of votes in the most recent parliamentary elections.”
With regard to the Guidelines for Broadcasters pertaining to the 2024 the Presidential and Parliamentary Elections and its disputed redistribution of paid political advertising, by complaint No. 119/24 of 25 March 2024, Dimitar Apasiev also addressed the State Audit Office, which, pursuant to Article 85 of the Electoral Code, is competent to audit the overall financial report with a specification of revenues and expenditures in the election campaign of the campaign participant.
In its reply to complaint No. 47-453/2 of 2 April 2024, the State Audit Office emphasised that the allegations contained in the complaint would be taken into account in the process of auditing the financial reports of participants in the election campaign for the 2024 parliamentary and presidential elections, as well as in identifying systemic weaknesses in the implementation of the legislative and subordinate legislative provisions comprising the legal framework of the electoral legislation in the Republic, which would be disclosed in the final audit reports.
Biljana Vankovska-Cvetkovska, by an initiative for the review of the constitutionality and legality of the Guidelines for Broadcasters pertaining to the 2024 the Presidential and Parliamentary Elections No. 01-1550/1 of 29 March 2024, also addressed the Constitutional Court of the Republic of North Macedonia. By Resolution U. No. 149/2024 of 13 April 2024, the Court dismissed the initiative for the institution of proceedings for the review of constitutionality and legality, reasoning that the Guidelines had a temporal and time-limited character, valid until the end of the election campaign for the presidential elections, by which its application was exhausted and it no longer remained in force.
On 23 April 2024, the applicant addressed the Constitutional Court with a request for the protection of freedoms and rights in respect of political activity and the prohibition of discrimination on grounds of political affiliation, caused by the application of the Guidelines for Broadcasters pertaining to the 2024 the Presidential and Parliamentary Elections.
III
The fundamental values of the constitutional order of the Republic contain the essential and foundational meaning of the constitutional order itself. According to the third fundamental value, the rule of law is based on several postulates, such as human rights, the existence of limited state power, the separation of state power into legislative, executive, and judicial branches, the existence of an independent judiciary, legal certainty for the individual and the citizen, and respect for the Constitution and the laws.
The fifth fundamental value is dedicated to political pluralism and free, direct, and democratic elections, which are interconnected and mutually dependent segments.
Political pluralism represents a broader concept than multi-partism, since it also encompasses political movements, associations of citizens, interest groups, and individuals as bearers of political ideas. On the other hand, free direct elections imply the possibility for citizens to directly elect their representatives to public authority, in circumstances where candidates with different programmes are present, whether such programmes belong to individuals, political parties, or other interest groups involved in the electoral process. Democratic elections are those that ensure equal participation of candidates in the electoral process and the free expression of the will of the electorate.
The right to non-discrimination is the human right to equality in the sphere of freedoms and rights, regardless of sex, race, skin colour, ethnic and social origin, political and religious belief, property and social status, as well as the equality of citizens before the Constitution and the laws enshrined in Article 9 of the Constitution.
Articles 22 Paragraphs 1 and 2 of the Constitution provide that every citizen who has reached the age of 18 acquires the right to vote, which is equal, general, and direct, and is exercised in free elections by secret ballot.
Article 23 of the Constitution of the Republic of North Macedonia prescribes that every citizen has the right to participate in the performance of public functions.
According to Article 80 of the Constitution, the President of the Republic shall be elected in general and direct elections, by secret ballot, for a term of five years. Article 81 Paragraph 1 of the Constitution stipulates that a candidate for President of the Republic may be nominated by at least 10,000 voters or by at least 30 Members of Parliament.
By Amendment XXXI, the constituent power determined the electoral threshold for the election of a candidate for President of the Republic. The candidate who receives the majority of votes from the voters who participated in the election shall be elected President, provided that more than 40% of the voters have cast their votes.
From these constitutional provisions it follows that every citizen who has reached the age of 18 has the right to vote for Members of Parliament, members of municipal councils, and mayors, as well as to participate in the election of the President of the Republic.
Furthermore, the constitutional authority of the legislator, while respecting the constitutional guarantees of the right to vote, the principle of equality, the principle of political pluralism, and free and democratic elections, imposes upon it the duty to regulate the electoral matters, including, inter alia, the election of the President of the Republic and the election of Members of Parliament in the Assembly, as it has done in the Electoral Code.
According to Article 1 of the Electoral Code (“Official Gazette of the Republic of Macedonia” No. 40/06, 127/06, 136/08, 155/08, 163/08, 44/11, 51/11, 54/11, 142/12, 31/13, 34/13, 14/14, 30/14, 32/14, 31/15, 196/15, 35/16, 97/16, 99/16, 136/16, 142/16, 57/17, 67/17, 125/17, 35/18, 99/18, 140/18, 208/18, 27/19; and “Official Gazette of the Republic of North Macedonia” No. 98/19, 42/20, 72/20, 160/20, 74/21, 215/21, 58/24, and 76/24), this Code regulates the manner, conditions, and procedure, inter alia, for the election of the President of the Republic of North Macedonia.
In the present situation, Article 59 of the Electoral Code operationalises Article 80 and Article 81 of the Constitution with respect to the “Submitter of a List of Candidates for President of the Republic.”
Namely, according to Paragraph 1 of Article 59, the right to submit a list of candidates for President of the Republic belongs to at least 10,000 voters or 30 Members of Parliament.
According to Paragraph 2, when the submitter of a list of candidates for President of the Republic is a group of voters, it is necessary to collect at least 10,000 signatures from registered voters in the Voters’ List.
Paragraph 3 provides that when the submitters of a list of candidates for President of the Republic are Members of Parliament, it is necessary to collect at least 30 signatures from the Members of Parliament.
Conversely, for the “Submitter of a list of candidates for Members of Parliament, members of a council and mayors”, Article 60 Paragraph 1 stipulates that the right to submit a list of candidates for Members of Parliament, a list of candidates for members of a council, or a list of candidates for mayor belongs to registered political parties acting independently, coalitions, as well as groups of voters.
According to Article 70 Paragraph 1, the submitter of a list of candidates whose lists of candidates for the election of the President of the Republic, Members of Parliament, members of a council, or mayor have been confirmed by the competent election commission, have the right to organize an election campaign (hereinafter: participants in the election campaign). Pursuant to Paragraph 2, participants in the election campaign have the right to equal access and under equal conditions to use all types of political propaganda, reporting and other forms of propaganda aimed at influencing the decision of voters when casting their vote.
Furthermore, in Chapter VI, entitled “Election Campaign”, in Item 2 under the subtitle “Media Presentation”, Article “75-a” Paragraph 1 prescribes that broadcasters shall ensure balanced coverage of the electoral process in all forms of electoral media representation, while national broadcasters shall ensure balanced coverage of elections in all forms of electoral media representation in an accessible and available language and format, including sign language, in the following manner:
a) for the election of the President of the Republic, in accordance with the principle of equality for all presidential candidates, both in the first and second round of elections;
b) for the election of Members of Parliament to the Assembly of the Republic, in accordance with the principle of proportionality based on the number of confirmed lists of candidates for Members of Parliament;
c) for local elections:
– for the election of mayors of municipalities, respectively the Mayor of the City of Skopje, in accordance with the principle of equality for all mayoral candidates, both in the first and second round of elections; and
– for the election of members of municipal councils, respectively members of the Council of the City of Skopje, state and regional broadcasters shall act in accordance with the principle of proportionality based on the number of confirmed lists of candidates for council members, respectively of the City of Skopje, while local broadcasters shall act in accordance with the principle of equality.
Paragraph 2 of the same Article prescribes that when determining the balance in coverage of the electoral process, the intensity of the campaign activities of participants shall be taken into account, while Paragraph 3 of the same Article of the Law, the principle of proportionality, that is to say, equality, is exempt to paid political advertising.
According to Article „75-ѓ“ Paragraph 1 of the Electoral Code, during the election campaign and in both the first and second round of voting, broadcasters covering the elections may air up to nine minutes and thirty seconds of additional advertising time per real broadcast hour, exclusively dedicated to paid political advertising – for the two largest political parties from the ruling position that won the most votes in the last parliamentary elections in the Assembly of the Republic of North Macedonia may use up to four minutes, allocated by prior written agreement; for the two largest opposition political parties that won the most votes in the last parliamentary elections in the Assembly of the Republic of North Macedonia may also use up to four minutes, allocated by prior written agreement; for political parties represented in the Assembly of the Republic of North Macedonia that did not win enough Members of the Parliament to form a parliamentary group may use one minute, allocated by prior written agreement; and for political parties not represented in the Assembly of the Republic of North Macedonia, or candidates, may use thirty seconds, allocated by prior written agreement.
Furthermore, Article “75-ѓ” Paragraph 12 regulates that advertising space in electronic media (internet portals) and in print media intended for paid political advertising shall be distributed according to the following criteria:
- up to 45% of advertising space may be allocated to the two largest political parties from the ruling position that won the most votes in the last parliamentary elections for the Members of the Parliament in the Assembly of the Republic of North Macedonia;
- up to 45% of advertising space may be allocated to the two largest opposition political parties that won the most votes in the last parliamentary elections for the Members of the Parliament in the Assembly of the Republic of North Macedonia;
- up to 7% of advertising space may be allocated to political parties represented in the Assembly of the Republic of North Macedonia that did not win enough Members of the Parliament to form a parliamentary group; and
- up to 3% of advertising space may be allocated to political parties not represented in the Assembly of the Republic of North Macedonia or to candidates.
Article 76 of the Electoral Code elaborates in detail the manner, time intervals, pricing, and criteria for the allocation of media space for paid political advertising (PPA). Article “76-a” Paragraph 2 prescribes that during the election campaign, the public broadcasting service is obliged to provide equal access in its informational programme, allocating 30% of airtime to daily events from the country and abroad, 30% of airtime to activities of ruling political parties, 30% of airtime to activities of opposition political parties, and 10% of airtime to activities of political parties not represented in the Assembly of the Republic of North Macedonia as well as independent candidates, while Paragraph 8 further regulates that the programme service dedicated to broadcasting activities of the Assembly of the Republic of North Macedonia shall provide three hours of free political presentation for the campaigns of political parties represented in the Assembly of the Republic of North Macedonia, and one hour for the campaigns of submitters of lists not represented in the Assembly of the Republic of North Macedonia. Regarding the use of the three hours and the one hour, campaign participants may decide to submit recorded campaign material or to use their allotted time for a live studio address.
According to these statutory provisions, broadcasters, namely the public broadcasting service, commercial broadcasting companies, and electronic media (internet portals) that have decided to cover the electoral process are obliged to do so in an accessible and available format and language, as well as in sign language. Broadcasters are obliged, during the electoral campaign, to provide participants in the campaign with balanced coverage (in accordance with the intensity of their campaigns) of the electoral process in all forms of electoral media representation – news, special informational programmes (debates, interviews, TV and radio debate appearances, etc.), free political presentation, and paid political advertising.
The Council of the Agency for Audio and Audiovisual Media Services (hereinafter: AAVMS), on the basis of the above-prescribed statutory norms which, inter alia, regulate paid political advertising, adopted Guidelines as a general legal act intended for broadcasters for the presidential and parliamentary elections of 2024, with the aim of clarifying for radio and television stations, inter alia, how to apply certain provisions of the Electoral Code, particularly regarding the limits for paid political advertising (PPA), the allocation of airtime in news by the Public Broadcasting Service (PBS), and the free political presentation of candidates.
By Item 3 of the Guidelines, the AAVMS established the allocation of airtime for paid political advertising “In accordance with the allocation of airtime for paid political advertising determined in Article “75-ѓ”, Paragraph 1 of the Electoral Code, the total of nine minutes and thirty seconds (00:09:30) per real hour of broadcast programme shall be used by list submitters in the following manner:
- Within the maximum of 4 minutes allocated to the two largest political parties from the ruling position, which at the last parliamentary elections won the most votes, paid political advertising shall be broadcast for the list submitters/candidates for President – Stevo Pendarovski, supported by the political party SDSM; and Bujar Osmani, supported by the political party DUI.
- Within the maximum of 4 minutes allocated to the two largest opposition political parties, which at the last parliamentary elections won the most votes, paid political advertising shall be broadcast for the list submitters/candidates for President – Gordana Siljanovska-Davkova, supported by the political party VMRO-DPMNE; and Arben Taravari, supported by the political parties Alternativa and BESA Movement.
- Within the maximum of 1 minute allocated to political parties represented in the Assembly which, at the last parliamentary elections, did not win a sufficient number of Members of the Parliament to form a parliamentary group, paid political advertising shall be broadcast for the list submitters/candidates for President – Biljana Vankovska-Cvetkovska, supported by the political party Levica; and Stevcho Jakimovski, supported by the political party GROM.
- Within the remaining 30 seconds allocated to political parties not represented in the Assembly or to candidates, paid political advertising shall be broadcast for the list submitter/candidate for President – Maksim Dimitrievski, supported by the political party ZNAM.”
According to Article 51 of the Rules of Procedure of the Constitutional Court (“Official Gazette of the Republic of Macedonia” No. 70/1992 and “Official Gazette of the Republic of North Macedonia” Nos. 202/2019, 256/2020, and 65/2021), any citizen who considers that by an individual act or action a right or freedom established in Article 110 line 3 of the Constitution has been violated may seek protection from the Constitutional Court within 2 months from the day of service of the final or enforceable individual act, or from the day of learning of the undertaking of an action by which the violation was committed, but no later than 5 years from the day of its undertaking.
In the application, pursuant to Article 52 of the Rules of Procedure, it is necessary to state the reasons for which protection is sought, the acts or actions by which the rights have been violated, the facts and evidence upon which the application is based, as well as other data necessary for the decision-making of the Constitutional Court.
According to the allegations in the application, the applicant considers that her constitutional right to political activity has been violated and that she has been discriminated against on the grounds of political affiliation by an action caused by the Guidelines for Broadcasters pertaining to the 2024 the Presidential and Parliamentary Elections, No. 01-1550/1 of 29 March 2024, adopted by the Agency for Audio and Audiovisual Media Services, regarding the allocation of airtime for paid political advertising during the electoral campaign for the presidential elections in the first round of voting, in such a way that in the Guidelines, where she appears as a candidate for President, she was discriminated against in relation to the other presidential candidates, who, by virtue of their political support, were privileged in the application of the law, namely the Electoral Code, in the determination of the allocation of minutes for paid political advertising in the Guidelines.
In fact, the applicant considers that a violation was committed in the application of substantive law, namely that the provisions of the Electoral Code were misinterpreted and incorrectly applied in the present case.
The Court found these allegations of the applicant to be unfounded for the following reasons:
The Guidelines were adopted by the Council of the Agency for Audio and Audiovisual Media Services (AAVMS), which, as the competent authority vested with public powers, acted in accordance with the applicable provisions of the Electoral Code. The Electoral Code explicitly stipulates in Article “75-a” Paragraph 3 that paid political advertising (PPA) is excluded from the principle of proportionality, that is, equality.
Within this statutory framework, the AAVMS adopted the Guidelines intended to explain to broadcasters the manner of applying the rules and restrictions laid down in the Electoral Code for both the presidential and the parliamentary elections of 2024, namely by determining the allocation of minutes for paid political advertising available to presidential candidates and political parties during the election campaign.
By means of this legal regime, the Guidelines aim to provide instructions to both radio and television broadcasters on how to act in circumstances when two electoral processes overlap and both campaigns require media coverage, in accordance with their intensity.
The Court considers that, under this legal regime, the AAVMS, through the provisions of the Guidelines, did not place the applicant in a less favourable position on account of her political activity and political affiliation, since this legal regime applies to all candidates and is equally implemented with regard to all confirmed presidential candidates in the first round of the 2024 presidential elections.
Accordingly, the Guidelines for Broadcasters pertaining to the 2024 the Presidential and Parliamentary Elections, no. 01-1550/1 of 29 March 2024, as a general act and not an individual act, which means that they apply to all candidates and are equally binding for all participants in this electoral process, cannot produce effects leading to different treatment on the basis of political affiliation, nor do the Guidelines contain provisions that create discrimination or in any way violate the constitutionally guaranteed right to political activity.
On the basis of the established facts and the applicable legal framework, the Court found that there are no legally relevant facts or evidence that, in the present case, the AAVMS, through the Guidelines, violated the freedom of political activity of the applicant, Biljana Vankovska-Cvetkovska, or that she was discriminated against on the grounds of her political affiliation. The Court therefore concluded that the requirements under Article 56 of the Rules of Procedure of the Constitutional Court for rejecting the request have been met.
IV
On the basis of the above, the Court, by a majority of votes, decided as set out in the operative part of this decision.
PRESIDENT
of the Constitutional Court of the Republic of North Macedonia,
Darko Kostadinoski LLD