The definition of discrimination

• Author: Biljana Kotevska
• Pages: 17-27

17

2 THE DEFINITION OF DISCRIMINATION

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

scope.

- 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).