U.No.198/2024

Constitutional Court of the Republic of North Macedonia

U.No.198/2024

Skopje, 30.04.2025

Acting pursuant to Article 110 of the Constitution of the Republic of North Macedonia, Article 72 Indent 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), at the session held on 30 April 2025, the Constitutional Court of the Republic of North Macedonia, composed of Darko Kostadinovski LLD, President of the Court, and judges Naser Ajdari, Tatjana Vasikj-Bozadjieva LLM, Jadranka Dabovikj-Anastasovska LLD, Elizabeta Dukovska, Osman Kadriu LLD, Dobrila Kacarska, Ana Pavlovska-Daneva LLD, and Fatmir Skender LLM, adopted the following:

D E C I S I O N

The Decision granting approval for the establishment of the Private Secondary School “Medreseja Isa Beu” – village of Kondovo, Skopje (“Official Gazette of the Republic of North Macedonia” No. 71/2024), adopted by the Government of the Republic of North Macedonia on 26 March 2024, is hereby REPEALED.

This Decision shall be published in the “Official Gazette of the Republic of North Macedonia”.

Reasoning

I

Acting upon an initiative submitted by Slavko Nikolov from Probishtip, by Resolution U.No.198/2024 of 26 February 2025, the Constitutional Court of the Republic of North Macedonia initiated proceedings to review the constitutionality and legality of the Decision referred to in Item 1 of the dispositive part of this Decision, as a well-founded question was raised regarding its compliance with the provisions of the Constitution of the Republic of North Macedonia, the Law on Secondary Education, and the Law on the Legal Status of a Church, Religious Community, or Religious Group.

II

At the session, the Court established that the contested Decision granting approval for the establishment of the Private Secondary School “Medreseja Isa Beu” – village of Kondovo, Skopje, was adopted on the basis of Article 12 of the Law on Secondary Education (“Official Gazette of the Republic of Macedonia” Nos. 44/95, 24/96, 34/96, 35/97, 82/99, 29/02, 40/03, 42/03, 67/04, 55/05, 113/05, 35/06, 30/07, 49/07, 81/08, 92/08, 33/10, 116/10, 156/10, 18/11, 51/11, 6/12, 100/12, 24/13, 41/14, 116/14, 135/14, 10/15, 98/15, 145/15, 30/16, 127/16, 67/17, 64/18 and “Official Gazette of the Republic of North Macedonia” No. 229/20), by the Government of the Republic of North Macedonia at its session of 26 March 2024.

According to Article 1 of the Decision, approval was granted for the establishment of the Private Secondary School “Medreseja Isa Beu” – village of Kondovo, Skopje.

Pursuant to Article 2 of the Decision, the approval referred to in Article 1 was granted on the basis of a request by the founding body, the Islamic Religious Community in the Republic of North Macedonia, with headquarters at “Chairska” Str. No. 52, Skopje, with tax identification number 4075010100032.

Article 3 of the Decision stipulates that the Private Secondary School referred to in Article 1 of this Decision shall organise and conduct instruction in general secondary education (gymnasium) in the fields of social sciences and humanities, combination A and combination B, languages and arts, combination A and combination B, and natural sciences and mathematics, combination A and combination B, in accordance with curricula and programme approved by the Ministry of Education and Science, pursuant to the Law on Secondary Education.

According to Article 4 of the Decision, the required teaching staff for the Private Secondary School “Medreseja Isa Beu” – village of Kondovo, Skopje, shall be provided in accordance with the Norms for Teaching and Other Staff in Secondary Education. The instruction shall be delivered by 75 teachers for the first, second, third, and fourth years of study.

Article 5 stipulates that the premises and the necessary equipment for the functioning of the Private Secondary School “Medreseja Isa Beu” – village of Kondovo, Skopje, shall comply with the standards applicable to the sector of secondary education.

According to Article 6 of the Decision, the Private Secondary School “Medreseja Isa Beu” – village of Kondovo, Skopje, shall be housed in a facility located in the village of Kondovo, Skopje, with a surface area of 4,084 m²; in a facility on “Probishtipska” Str. unnumbered, in Tetovo, with a total surface area of 853 m²; in a facility on “18 November” Str. unnumbered, in Gostivar, with a total surface area of 758 m²; and in a facility on “Strasho Pindjur” Street No. 13 in Shtip, with a total surface area of 507 m².

Article 7 of the Decision stipulates that the number of students to be enrolled in the first year of education in the 2024/2025 academic year shall be 144 students in 6 classes, whereas for subsequent academic years, the number of students and classes shall be determined by the founding body.

Pursuant to Article 8, instruction at the Private Secondary School “Medreseja Isa Beu” – village of Kondovo, Skopje, shall be conducted in the Macedonian language using its Cyrillic script, in the Albanian language using its script, and in the Turkish language using its script.

According to Article 9 of the Decision, the upbringing and educational programme for general secondary education (gymnasium) at the Private Secondary School “Medreseja Isa Beu” – village of Kondovo, Skopje, corresponds to the programme implemented in public secondary schools in the Republic of North Macedonia, covering the fields of social sciences and humanities combinations A and B, languages and arts combinations A and B, and natural sciences and mathematics combinations A and B.

Article 10 of the Decision provides that the Private Secondary School “Medreseja Isa Beu” – village of Kondovo, Skopje, shall commence operations on 1 September 2024, following the issuance of a verification resolution by the Ministry of Education and Science.

Article 11 of the Decision stipulates that the financial resources necessary for the operation of the Private Secondary School “Medreseja Isa Beu” – village of Kondovo, Skopje, shall be provided by the founding body.

Pursuant to Article 12 of the Decision, this Decision shall enter into force on the day following its publication in the “Official Gazette of the Republic of North Macedonia”.

The Decision is registered under No. 41-3741/2 of 26 March 2024 and is signed by MA Talat Xhaferi as President of the Government of the Republic of North Macedonia.

III

Constitutional Provisions

Pursuant to Article 8 Paragraph 1 Indents 1 and 3 of the Constitution, the fundamental freedoms and rights of the individual and citizen, recognised in international law and established by the Constitution, as well as the rule of law, represent fundamental values of the constitutional order of the Republic of North Macedonia.

Equality of citizens is guaranteed by Article 9 of the Constitution, which provides that citizens of the Republic of North Macedonia are equal in their freedoms and rights regardless of sex, race, skin colour, national and social origin, political and religious beliefs, property or social status. Citizens are equal before the Constitution and the laws.

Article 16 Paragraph 1 of the Constitution guarantees the freedom of conviction, while Article 19 Paragraphs 1 and 2 guarantee freedom of religion and the right to freely and publicly express one’s faith, individually or in community with others.

Amendment VII, Item 1, which replaces Paragraph 3 of Article 19 of the Constitution, establishes that the Macedonian Orthodox Church, as well as the Islamic Religious Community in Macedonia, the Catholic Church, Evangelical Methodist Church, the Jewish Community and other Religious communities and groups are separate from the state and equal before the law.

Item 2 of the same Amendment, which replaces Paragraph 4 of Article 19 of the Constitution, stipulates that the Macedonian Orthodox Church, as well as the Islamic Religious Community in Macedonia, the Catholic Church, Evangelical Methodist Church, the Jewish Community and other Religious communities and groups are free to establish schools and other social and charitable institutions, by way of a procedure regulated by law.

Pursuant to Article 44, everyone has the right to education. Education is accessible to everyone under equal conditions.

Article 45 provides that citizens, under conditions determined by law, have the right to establish private educational institutions at all levels of education, except at the level of primary education.

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

Pursuant to Article 110, Indent 2 of the Constitution, the Constitutional Court of the Republic of North Macedonia decides on the compliance of other regulations and collective agreements with the Constitution and the laws.

Relevant Legislative Provisions

Law on Secondary Education

The Law on Secondary Education (“Official Gazette of the Republic of Macedonia”, nos. 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), regulates the organisation, functioning and management of secondary education, as part of the overall system of upbringing and education.

According to Article 2 of the Law on Secondary Education, curricula and programmes for general secondary education (gymnasium) and vocational education are implemented within secondary education. Secondary education is provided in secondary schools organised as public secondary schools (municipal secondary school, i.e. secondary school of the City of Skopje, and state secondary school) and as private secondary schools. State secondary schools may be established only for the implementation of curricula and programmes intended for specific categories of students for whom the state has a particular interest. The activity carried out within a secondary school is of public interest and is performed as a public service. A secondary school holds the status of a legal entity and is registered in the Central Register of the Republic of Macedonia.

Article 3 Paragraph 3 of the Law prohibits discrimination based on sex, race, skin colour, national and social origin, political and religious conviction, property or social status.

Pursuant to Article 7 of the Law, all political and religious organising and activity is prohibited in secondary schools. The organisation of religious education is not permitted within secondary schools. It is also prohibited to display political or religious symbols in secondary schools.

The entities eligible to establish secondary schools are defined in Article 10 of the Law, which provides that a municipal secondary school may be established by a municipality. The decision to establish a municipal secondary school is adopted by the municipal council, following prior opinion obtained from the Government of the Republic of Macedonia (hereinafter: the Government). A secondary school of the City of Skopje may be established by the Council of the City of Skopje. The decision for establishment a secondary school is adopted by the Council of the City of Skopje upon a proposal from the municipal council and following prior opinion obtained from the Government. State secondary schools are established by the Government. Private secondary schools may be established by domestic and foreign legal and natural persons, based on authorisation in accordance with this Law.

The conditions that must be fulfilled for the establishment of a secondary school are stipulated in Article 11, which provides that a secondary school may be established if:

– there exists a need on the part of the municipality, the City of Skopje, or the state for a particular type of workforce,

– Curricula and educational programmes for upbringing and education work have been adopted,

– appropriate premises and equipment for the provision of secondary education are secured,

– a financial plan ensures sustainable funding for at least one generation of students,

– a sufficient number of individuals meeting the requirements for teachers and expert associates in secondary education are available, and have provided a declaration that they will apply in a public competition and will enter into employment should they be selected, and

– all other conditions determined by the norms and standards for the establishment of secondary schools for the purpose of providing secondary education are met.

The conditions referred to in Paragraph 1, Indents 2, 3, 4, 5 and 6 of this Article also apply to the establishment of private secondary schools.

The norms and standards referred to in Paragraph 1 Indent 6 of this Article for the establishment of secondary schools are adopted by the Minister responsible for matters in the field of education (hereinafter: the Minister), upon the proposal of the Bureau for Development of Education.

The procedure for the establishment of private secondary schools is regulated by the Law, which, in Article 12, provides that the Government adopts a decision granting authorisation for the establishment of a private secondary school, following a prior opinion from the Ministry, the Bureau for Development of Education, and the Centre for Vocational Education and Training, provided that the conditions stipulated in Article 11 Paragraph 1 Indents 2, 3, 4, 5 and 6, as well as the conditions of Article 11-a of this Law, have been fulfilled.

Pursuant to Article 13 of the Law, the decision of the Government of the Republic of Macedonia to grant authorisation for the establishment of a private secondary school shall determine:

– the upbringing and educational field, i.e., the type of secondary education for which the private school is established;

– the required teaching staff, equipment and premises, in accordance with pedagogical norms and standards;

– the number of students;

– the language of instruction;

– the programme of upbringing and educational activity; and

– the date on which the private school will commence operations.

Article 13-a of the Law stipulates that, following the adoption of the decision granting authorisation for the establishment of a private secondary school, the founder adopts a founding act, in accordance with the draft founding act referred to in Article 11-b of this Law, which was submitted with the request for authorisation.

According to Article 14, the authorisation may be amended or extended in cases where the founder requests a change in the type of secondary education or an expansion of the upbringing and educational programme.

Pursuant to Article 15, the Government of the Republic of Macedonia may revoke the authorisation upon proposal from the Ministry, if:

– the founder establishes a private school contrary to the authorisation act under Article 13, or

– it is determined that the private school no longer meets the conditions referred to in Article 11 Paragraph 1 Indents 2, 3, 4, 5 and 6 of this Law, or does not implement the provisions of this Law or the by-laws arising from it.

Authorisation may also be terminated upon request by the founder.

Article 19 provides that a secondary school may commence operations once the Ministry has issued a decision verifying the secondary school. Within 30 days of the submission of the application for verification, the Ministry adopts a decision ruling on the application for verification of the secondary school (hereinafter: verification resolution).

In accordance with Article 19-a, secondary schools, upon receiving the verification resolution, are registered in the Central Register of Secondary Schools, maintained by the Ministry in accordance with the Law on General Administrative Procedure.

Law on the Legal Status of a Church,

Religious Community or Religious Group

The Law on the Legal Status of a Church, Religious Community or Religious Group (“Official Gazette of the Republic of Macedonia” No. 113/2007) regulates the establishment and legal status of churches, religious communities and religious groups, the conduct of worship, prayer and religious rites, religious instruction and educational activities, the income of churches, religious communities and religious groups, as well as other related matters. Pursuant to paragraph 2 of this Article, churches, religious communities and religious groups are separate from the State and are equal before the law.

According to Article 3 of the Law, the right to freedom of belief, thought and conscience includes the freedom of every individual to manifest their religion or belief, either alone or in community with others, publicly or privately.

Article 4 of the Law prohibits religious discrimination.

The autonomy of religious communities is guaranteed under Article 5 of the Law, pursuant to which churches, religious communities and religious groups have the right to freely organise their internal structure through their own governing bodies, hierarchy and competencies; to designate persons who shall represent them; and to adopt acts in relation thereto.

The educational activities of religious communities are regulated under Chapter V of the Law, entitled Religious Instruction and Educational Activities. Within this Chapter, Article 21 stipulates that a church, religious community or religious group may conduct religious instruction. Religious instruction is delivered in premises where religious rites are performed and other forms of public expression of faith take place, as well as in other public and private premises and venues, provided that public order and peace are not disturbed thereby.

The right to establish religious educational institutions is governed by Article 22 of the Law, which provides that churches, religious communities and religious groups have the right to establish religious educational institutions at all levels of education, except for primary education, for the training of clergy and religious officials, as well as boarding facilities for the accommodation of persons enrolled in such institutions. In accordance with paragraph 2, religious educational institutions are considered equal to other educational institutions and their pupils and students enjoy the same rights and bear the same obligations.

Article 23 of the Law prescribes that churches, religious communities and religious groups shall submit a notification of the establishment of a religious educational institution, together with the act stipulating the purpose and internal organisation of the institution and the educational curricula and programme, in accordance with the provisions of this Law, to the authority competent for matters concerning the relations between the State and religious communities no later than 90 days prior to the date scheduled for the commencement of its operations. The competent authority shall be obliged to submit its opinion to the church, religious community or religious group within 60 days from the date of submission of the notification.

According to Article 24 of the Law, the curricula and programmes of religious educational institutions must not be contrary to the Constitution and the laws. The State administrative authority competent for education may conduct an inspection of the curricula of religious educational institutions within the meaning of Paragraph (1) of this Article.

The management of religious schools is regulated by Article 26 of the Law, pursuant to which churches, religious communities and religious groups shall autonomously manage the religious educational institutions and other educational institutions, as well as boarding facilities for pupils and students that they may establish in accordance with this or another law. The person responsible for the religious educational institution, the educational institution or the pupils’ and students’ dormitory are obliged to make available to the State administrative authority competent for educational matters the information required to conduct an inspection of their operations and to remedy any identified shortcomings within the deadline set by that authority.

Law on the Government

Article 35 of the Law on the Government (“Official Gazette of the Republic of Macedonia” nos. 59/2000; 26/2001; 12/2003; 55/2005; 37/2006; 115/2007; 19/2008; 82/2008; 10/2010; 51/2011; 15/2013; 27/2014; 139/2014; 196/2015; 142/2016; 140/2018; and Official Gazette of the Republic of North Macedonia no. 98/2019) provides that, for the implementation of laws, the Government adopts decrees with the force of law, decrees, decisions, instructions, programmes, resolutions and conclusions.

According to Article 36, Paragraph 3 of the Law, the Government decides on specific issues and measures for the implementation of laws; it establishes professional and other services for its own needs, as well as joint services for the needs of the Government, the ministries and other state administrative authorities.

Positions of the Court

In reviewing the competence of the Constitutional Court in relation to the contested act, the initial issue examined in the analysis concerned the legal nature of the contested act, i.e. whether the contested act constitutes a regulation subject to constitutional-judicial review.

In response to this question, the Court noted that from a formal perspective, the title of the contested act is “Decision”, which is a generic or general term encompassing both individual and general acts adopted by the Government and state administrative authorities. Furthermore, the contested act of the Government of the Republic of North Macedonia is entitled Decision on Granting Authorisation, which, from a purely formal standpoint, may be interpreted as a single or individual act issued by a public authority at the request of a party and in accordance with the rules of administrative procedure. However, such a view is not supported by an analysis of the Macedonian positive law nor by legal theory dealing with the concept of a concrete administrative act and administrative matter as the subject of administrative procedure and administrative judicial review. Supporting this view is the fact that the Law on General Administrative Procedure of 2015, in Article 4, Paragraph 1, Indent 5, clearly defines an administrative act as “an individual act by a public authority adopted on the basis of law which determines the rights, obligations or legal interests of parties.” Administrative acts may be entitled as a resolution, decision, order, licence, permit, prohibition, authorisation, or otherwise. Therefore, for an act titled “Decision” to be regarded as an administrative act adopted in an administrative procedure, its content must be an individual act, i.e. it must produce rights and obligations for a specific legal subject (natural or legal person). In other words, the legal effect of such an act must be inter partes – that is, it must produce legal consequences only for the party to whom the individual act was issued by the public authority. Only in such cases, in accordance with the Law on Administrative Disputes of 2019, is it possible to conduct judicial review of the legality of the act, and only if the party, dissatisfied with its formal or substantive legality, decides to initiate an administrative dispute by means of a lawsuit.

Consequently, the Court finds that the Decision of the Government of the Republic of North Macedonia on Granting Authorisation for the Establishment of a Private Secondary School, which has been contested by the initiative submitted to the Constitutional Court, based on the definition of an administrative act as provided by the Law on General Administrative Procedure, cannot be regarded as an individual legal act, notwithstanding its title. The provisions contained in this decision do not have merely inter partes legal effect, i.e. legal effect solely between the parties (the Government and the Islamic Religious Community), on the contrary, the legal consequences produced by the Decision have general legal effect, as they affect an indeterminate number of citizens — current and future students, their parents as legal guardians, current and future teaching staff, administrative personnel, and so forth. In other words, it is a regulation whose provisions have erga omnes legal effect.

Legal theory in the field of administrative law identifies several elements constituting the essence of an administrative act, the first of which is concreteness. With regard to this fundamental characteristic of the administrative act, administrative legal theory observes the following: “Concreteness denotes that the act pertains to a specific legal situation, which is not permanent or repeatable, but singular and unrepeatable.” It is an indisputable fact that each decision to grant authorisation for the establishment of a private or public institution does not create a specific but a general legal situation, and certainly not one that is singular and unrepeatable, but one that is permanent and repeatable, encompassing the provision of public services to an indeterminate number of parties and for an indefinite period of time.

Accordingly, the Court held that the contested decision of the Government of the Republic of North Macedonia, by its content, possesses the characteristics of a regulation and is therefore subject to constitutional judicial review concerning its constitutionality and legality.

From the perspective of the content of the contested decision, the allegations presented by the submitter of the initiative are well-founded, both in terms of its inconsistency with Amendment VII of the Constitution, and its unlawfulness — that is, its incompatibility with the Law on Secondary Education and the Law on the Legal Status of a Church, Religious Community or Religious Group.

Namely, from the aforementioned constitutional provisions it follows that the Republic of North Macedonia is a democratic state founded on the respect for human freedoms and rights, where all citizens are equal before the law without any discrimination, including, among other grounds, discrimination based on their religious belief (faith). The freedom of religious belief is guaranteed by the Constitution, which provides that everyone may freely and publicly express their faith, individually or in community with others. Furthermore, the Republic of North Macedonia, as a multiethnic and multiconfessional community, is built upon the principle of the separation of religion from the state, which derives from Amendment VII of the Constitution, according to which the Macedonian Orthodox Church, as well as the Islamic Religious Community in Macedonia, the Catholic Church, the Evangelical Methodist Church, the Jewish Community, and other religious communities and religious groups are separated from the state and are equal before the law. The autonomy of religious communities with regard to religious education is likewise guaranteed by the Constitution, which stipulates that religious communities and religious groups are free to establish religious schools and social and charitable institutions, in a procedure prescribed by law.

The principle of separation of religious communities from the state, as enshrined in Amendment VII of the Constitution, implies that in its relations with religious communities and religious groups, the state must remain neutral, as this is one of the essential conditions for the realisation of freedom of religion. In accordance with this principle, the state must not interfere in matters of faith or in the affairs of religious communities and religious groups; it must neither encourage adherence to a particular faith or to faith in general, nor obstruct the expression of religious belief. The state must also respect the constitutionally proclaimed autonomy regarding the educational activities of religious communities, in such a manner that it leaves the establishment and organisation of religious schools to the religious communities themselves and refrains from interfering in the selection and implementation of programmes and content related to religious education.

The constitutionally proclaimed separation of the state and religious communities in the field of education is operationalised in the relevant laws in the field of education and in the Law on the Legal Status of a Church, Religious Community, and Religious Group. For precisely these reasons, Article 7 of the Law on Secondary Education prohibits any political or religious organisation and activity within schools, prohibits the display of religious symbols, and does not permit the organisation of religious education. Religious education is conducted exclusively and solely in religious schools established by religious communities, and for this reason, the establishment of such religious schools is regulated by the law governing the status and position of churches, religious communities, and religious groups, and not by the laws in the field of education. Consequently, the Law on Secondary Education applies to secondary schools – public or private – in which civic instruction is provided according to the curricula of general secondary education (gymnasium) and vocational education adopted by a state authority – the Ministry of Education – and not to schools in which religious education is conducted and which are established by religious communities.

On this basis, the Court found the allegations made in the initiative to be well-founded, namely that by adopting the contested decision the Government violated the constitutional provision concerning the separation of the state from religious matters. This was done in such a manner that, through the contested decision, the Government granted consent to a religious community, the Islamic Religious Community, to establish a general secondary school (gymnasium), even though, under Amendment VII of the Constitution, religious communities may only establish religious schools in which religious instruction is taught, that is, where a specific religion is preached and studied. Such a school for the study of the Islamic faith already exists – namely, the Islamic Secondary School “Isa Bey Medresa” in the village of Kondovo, which represents an educational institution of the Islamic Religious Community, which is its founder and oversees the realisation of the educational process and the planning and implementation of programmes for religious instruction.

It therefore follows that the systems of religious education and secular, or civic, education are clearly separated in accordance with the aforementioned constitutional principle. The Constitution of the Republic of North Macedonia guarantees religious communities the freedom to carry out upbringing and educational activities, which in practice means that the system of religious education organised by religious communities as founders of religious schools, and which serves to preserve and promote the religious awareness of the followers of particular faiths, is entirely separate from the system of civic education as an activity of public interest in which no specific religion is promoted. Thus, any attempt to merge the two represents a violation of the constitutional principle of the separation of state and religion as enshrined in Amendment VII of the Constitution and of the secular character of Macedonian society.

IV

On the basis of the aforementioned, the Court, by majority vote, adopted the decision as stated in the dispositive part of this decision.

V

This decision produces legal effect as of the date of its publication in the “Official Gazette of the Republic of North Macedonia”.

PRESIDENT

of the Constitutional Court

of the Republic of North Macedonia,

Darko Kostadinovski LLD