On the basis of Article 34 Paragraph 1 of the Act of the Constitutional Court of the Republic of North Macedonia (“Official Gazette of the Republic of North Macedonia” No.115/2024), following the vote against Decision U.no.165/2024 by which the Constitutional Court, at the session held on 25 June 2025, rejected the application of the applicant, in her capacity as a confirmed independent candidate, Biljana Vankovska-Cvetkovska, for 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 grounds of political affiliation, I express my dissent and provide the following reasoning:
SEPARATE OPINION
With due respect to the views expressed in the report concerning the said application for protection of freedoms and rights, I wish first to emphasise its direct connection with case U.no.149/2024, in which the Guidelines for Broadcasters pertaining to the 2024 the Presidential and Parliamentary Elections No.01-1550/1 of 29.03.2024, adopted by the Agency for Audio and Audiovisual Media Services, was challenged.
In relation to case U.no.149/2024, although as Judge-Rapporteur I proposed that proceedings be instituted in this case, the Court, by a majority of votes, decided to reject the initiative on account of the temporal character of the Guidelines, i.e. that the contested Guidelines had already expired and had therefore ceased to form part of the legal order, although that was not in fact the case here. This for the reason that the contested Guidelines, at the moment of the decision-making of the Constitutional Court, was still formally legally valid until 4 May 2024 (until 24:00 hours, during the period of the electoral silence). I pointed out that the application for protection of freedoms and rights on which the Court has now decided was directly connected with the above-mentioned Guidelines, since, had proceedings been instituted with respect thereto, that is, had there been an expression of doubt as to its legality, the present application for protection of freedoms and rights would not have been submitted. If proceedings had been instituted, the Constitutional Court, through its decision to initiate proceedings, would have sent a clear and unambiguous message to the adopter the unconstitutionality and unlawfulness of the Guidelines, thereby ensuring that the adopter in future refrains from adopting unconstitutional and unlawful acts, as indeed was the case with the contested Guidelines.
I do not agree with the position of the majority of judges expressed in the Decision rejecting the applicant’s request for protection of freedoms and rights, namely that in the application of the provisions of the Electoral Code concerning media representation of candidates for President of the State and candidates for Members of Parliament there existed a legal gap or ambiguity. I state this for the reason that Article “75-a” Paragraph 1 of the Electoral Code provides that broadcasters shall ensure balanced coverage of the entire electoral process in all forms of media representation, and that national broadcasters shall provide balanced coverage of the elections in all forms of media representation in an accessible and available language and format, including in 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, prescribes that the principle of proportionality, that is to say, equality, is exempt to paid political advertising.
In this regard, the legislator has clearly and decisively delineated the manner in which media representation of all participants in the electoral process shall be carried out, both for candidates for President of the State and for candidates for Members of Parliament and representatives of local self-government. When it comes to presidential candidates, the legislator opted for the principle of equality, whereas for parliamentary and local self-government candidates, it opted for the principle of proportionality.
In my view, the adopter of the Guidelines, in operationalising the Electoral Code in the part relating to the media representation of presidential candidates, incorrectly applied Article “75-ѓ” Paragraph 1.
Article “75-ѓ” Paragraph 1 of the Law provides that, during the election campaign and in both the first and second rounds of voting, broadcasters covering the elections may air nine minutes and thirty seconds of additional advertising time per hour of broadcast programme, exclusively intended for paid political advertising, for the two largest ruling parties, which won the most votes in the most recent parliamentary elections in the Assembly of the Republic of North Macedonia, may allocate up to four minutes, distributed on the basis of a prior written agreement; for the two largest opposition parties, which won the most votes in the most recent parliamentary elections in the Assembly of the Republic of North Macedonia, may allocate one minute, also distributed on the basis of a prior written agreement; and the political parties not represented in the Assembly of the Republic of North Macedonia or the candidates themselves may allocate thirty seconds, likewise distributed on the basis of a prior written agreement. In my opinion, the other provisions of the cited article are also clear.
The position of the majority of judges, expressed in the Decision of this Court, is unfounded – namely, that the Guidelines for Broadcasters pertaining to the 2024 the Presidential and Parliamentary Elections No. 01-1550/1 of 29.03.2024, adopted by the Agency for Audio and Audiovisual Media Services, has the character of a general act rather than an individual one. Applied in such a manner, it was equally binding upon all participants in the electoral process and could not produce any effect of differential treatment on the grounds of political affiliation, nor does the Guidelines contain elements of discrimination or in any way violate the constitutionally guaranteed right to political activity.
This is because, in my view, in the specific case, the adopter of the already once contested Guideline, when adopting the same in the part concerning presidential candidates, ought to have relied exclusively on Article “75-a” Paragraph 1 Item “a” and applied the principle of equality, meaning that all candidates for President of the Republic of North Macedonia should have had equal time for media representation. This is all the more so given that presidential candidates do not submit their lists through political parties, but in accordance with Article 59 Paragraph 1 of the Electoral Code, which provides that: “The right to submit a list of candidates for President of the Republic belongs to at least 10,000 voters or 30 Members of the Parliament.”
I once again emphasise that with the adoption of the Guidelines, Article “75-ѓ” Paragraph 1 has been incorrectly applied both in relation to presidential candidates and to parliamentary candidates. In the present case, although the Constitutional Court did not previously express doubt as to the constitutionality and legality of the contested Guidelines, nevertheless, by employing the method of extensive interpretation of constitutional norms at its disposal, it had the opportunity to establish a violation of the right to political activity and the prohibition of discrimination on grounds of political affiliation. For this reason, I consider that the claims of the applicant, Biljana Vankovska-Cvetkovska From Skopje, for the protection of freedoms and rights, are entirely well-founded, and that through the adoption of the Guidelines for Broadcasters pertaining to the 2024 the Presidential and Parliamentary Elections No. 01-1550/1 of 29.03.2024, adopted by the Agency for Audio and Audiovisual Media Services, a violation of the right to political activity and the prohibition of discrimination on the grounds of political affiliation has indeed occurred, within the meaning of Article 110 Indent 3 of the Constitution of the Republic of Macedonia.
Judge of the Constitutional Court of the Republic of North Macedonia,
Fatmir Skender, LLM
10 July 2025
Skopje