The definition of discrimination

AuthorBiljana Kotevska
2.1 Grounds of unlawful discrimination explicitly covered
The following grounds of discrimination are explicitly prohibited in th e main legislation
transposing the two EU anti-discrimination directives (listed in the Introduction in the
section on the main legislation transposing and implementing the directives):
- The new Law on Prevention and Protection against Discrimination:51 race, skin colour,
origin, nationality or ethnicity, sex, gender, sexual orientation, gender identity,
belonging to a marginalised group, language, citizenship, social origin, education,
religion or religious belief, political conviction, other convictions, disability, age,
family or marital status, property status, health condition, personal capacity and
social status (open-ended clause) (Article 5). In c ontrast to the 2010 Anti-
Discrimination Law, the new ADL is in line with the directives and goes beyond th eir
- The Law on Labour Relat ions (Labour Law) includes the following grounds: race or
ethnic origin, colour, sex, age, health condition i.e. disability, religious, political or
other beli ef, memb ership of a t rade un ion, nat ional or social origin, family status,
property status, sexual orientation or other personal circumstances (Article 6(1)).
2.1.1 Definition of the grounds of unlawful discrimination withi n the directives
Although the Law on Prevention and Protection agai nst Discrimination (hereinafter Anti -
Discrimination Law, ADL) contains an article defining key terms used in the law (Article 4),
it does not contain definitions of the grounds from the directives e xcept for disability (see
section c here, above). No issues arising from this have yet been repo rted.
It is important to note, however, that ratified international treaties rank higher than laws
in t he nationa l legal hierarchy, but below the Constitution. As reported in Annex 2, the
country has ratified the In ternational Convention on the Eliminat ion of All Forms of Racial
Discrimination, th e Convention on the Elimination of all Forms of Discrimination Aga inst
Women, the Convention on the Rights of Person s with Disabilities and the Convention on
the Rights of the Child, so interpretation of the discrimination grounds following from these
treaties should b e considered as valid at the national level. The same applie s to the
European Convention on Human Rights an d to the Framework Convention on National
Minorities, to which the country is also a party. The resourcefulness and absolute necessity
of turning to international law for definitions of the discrimination grounds is made clear in
51 Other laws which include provisions with discrimination grounds are the following: Law on Courts (Articles 3
(1-3), 6 (1), 43 (1)), Criminal Code (Articles 137 (1), 319 (1), 394-, 417 (1), Law on the Execution of
Sanctions (Article 4(2) and (3)), Law on Volunteering (Article 9), Law on Voluntary Financed Pension
Insurance (Article 3), Law on Primary Education (Article 5(1)), Law on Secondary Education (Article 3(3)),
Law on Higher Education (Article 108 (5)), Law on the Protection of Children (Article 12 (1)), Law on Social
Protection гArticle мс гнддз Law on Patients’ Rights гArticle ргнддз Law on Public Health гArticle мсгрддз Law
on Health Protection (Article 9), Law on Mental Health (Article 20(4)), Law on Equal Opportunities for
Women and Men (Article 4(3)), Law on the Media (Article 4), Law on Audio and Audio-visual Media Services
(Articles 45, 53, 61), Law on Culture (Article 4(1)), Law on Agencies for Temporary Employment (Article
3b(3)), Law on Insurance in Case of Unemployment (Article 1(2), Law on Employment of and Work by
Foreigners (Article 4(8)), Law on Public Prosecutors (Article 5(2)), Law on Border Control (Article 8(3)), Law
on Customs Administration (Article 13(1)). The need for harmonisation of the discrimination grounds across
laws has already been identified (see Kotevska B. (2016), Analysis of the harmonisation of national equality
and non-discrimination legislation, Skopje, OSCE and CPAD). The new ADL contains a transitory provision
that all other laws that contain provisions on the prevention of and protection against discrimination ‘shall
be harmonised with the Law on the Prevention of and Protection against Discrimination within two years as
of the day of the entry into force of this Law’ гArticle рмд. Keeping legal provisions with different personal
and material scopes of protection in force, while resolvable under the lex specialis derogat legi generali rule,
contributes to a reduction of legal certainty. A new analysis was prepared proposing several models for
harmonisation of the national legislation (see Najchevska, M. (2019), A   
     (Analysis of the harmonisation of the legislation in
the area of anti-discrimination), OSCE).

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