General legal framework

• Author: Biljana Kotevska
• Pages: 16-16

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1GENERAL LEGAL FRAMEWORK

Constitutional provisions on protection against discrimination and the promotion

of equality

The Constitution of North Macedonia includes the following articles dealing with non-

discrimination:

-Article 9 explicitly covers the following grounds: sex, race, skin colour, national or

social origin, political and religious belief, property and social status (closed list of

grounds) (paragraph 1). Paragraph 2 contains a general equality clause on equality

before the law, which is not tied to a discrimination ground, making the personal

scope of the article open but still limited only to citizens and, in accordance with the

practice of the Constitutional Court, to natural persons.

-Article 54 prohibits discriminatory limitations of constitutionally prescribed rights and

freedoms on grounds of sex, race, colour, language, religion, national or social origin,

property or social status.

The provisions apply to all areas covered by the directives. Their material scope is broader

than those of the directives.

In theory, these provisions are directly applicable, but this is not so in practice.48 Under

the Constitution, every citizen may invoke the protection of freedoms and rights prescribed

in the Constitution before the ordinary courts and before the Constitutional Court, through

a procedure based upon the principles of priority and urgency. However, the ordinary

courts have a practice of rejecting Constitution-based human rights claims. The

Constitution also guarantees judicial protection of the legality of individual acts of the state

administration and of other public institutions (Article 50). Thus the letter of the law says

that the constitutional provisions are directly applicable, but practice indicates otherwise.

The mechanisms enabling ordinary courts to directly apply the constitutional anti-

discrimination provision have not been used.49

In practice, there are no requests for interpretation of constitutional provisions from the

ordinary courts to the Constitutional Court and there is no practice of referencing the

Constitutional Court by the ordinary courts. This is for two reasons. First, regardless of the

procedure used, ordinary courts insist that a lawsuit is brought invoking provisions of

specific laws, and they tend not to implement the Constitution directly. Second, the

Constitutional Court’s positioning and practice is such that it does not enter into revisions

of verdicts and decisions of the ordinary courts.50

Although judicial interpretation would be required, there is no reason to expect that

constitutional equality clauses cannot be enforced against private actors (as well as against

the state). However, in view of the comments above on the actual use of these provisions

before the ordinary courts, the practical relevance of this is questionable.

48 See Section 1(b) of the 2013 Report: https://www.equalitylaw.eu/downloads/4174-fyr-macedonia-country-

report-non-discrimination-2013-1-11-mb.

49 This does not mean that ordinary courts do not mention provisions from the Constitution.

50 See, for example, Constitutional Court cases: U.No.55/2015 (para.4) (24 June 2015); U.No.152/2012-0-0

(para.4) (14 November 2012); U.No.172/2002 (para.4) (25December 2002); U.No.37/1997 (para.3) (19

March 1997).