The following description shall be considered a summary of legislation and policy relating to anti-discrimination only, and does not seek to address nor provide any indication of the de facto practical implementation of relevant legislation or policy decisions.
The right to be free from all forms of discrimination is guaranteed by the Constitution, whose Article 9 states that citizens [nationals] are equal before the Constitution and laws and are also entitled to equal freedoms and rights, regardless of characteristics such as sex, race, colour of skin, national and social origin, political and religious belief, property and social status. Article 54 par 3 states that restrictions of rights and freedoms may not be discriminatory on similar grounds (this provision does not list "political and religious belief", but includes "language"). Article 29 par 1 states that foreigners enjoy the freedoms and rights guaranteed by the Constitution, under conditions established by laws and international treaties.
International obligations of "the former Yugoslav Republic of Macedonia" (hereinafter referred to as “the State”) arise mainly from treaties ratified by the State (or accepted in other ways such as by accession or succession). These treaties have become part of the internal legal order and cannot be changed by law (Article 118 of the Constitution of 1991, last amended in 2011). The State is a party to the International Convention on the Elimination of All Forms of Racial Discrimination, the Discrimination (Employment and Occupation) Convention of the International Labour Organization, and the UN Convention on the Elimination of All Forms of Discrimination against Women. The State's candidate status for accession to the European Union (EU) has necessitated the approximation of its legislation with the relevant EU anti-discrimination/equality directives.1 Also, as an OSCE participating State, the State has agreed to various OSCE commitments on enhancing government responses to discrimination.2
The Anti-Discrimination Law
The Law on Prevention of and Protection against Discrimination (hereinafter referred to as “the Anti-Discrimination Law”) was adopted in 2010. The Anti-Discrimination Law declares its aim as preventing and protecting against discriminatory conduct in the enjoyment of rights guaranteed by the Constitution, laws and ratified international treaties (Article 1 par 1). Based on this Law, all natural and legal persons shall benefit from the prohibition of and protection against discrimination (Article 2). Discrimination within the meaning of the Anti-Discrimination Law denotes any unjustified legal or actual, direct or indirect distinction or unequal treatment or omission (exclusion, limitation or giving priority) in relation to persons or groups on an extensive list of grounds: sex, race, colour of skin, gender, belonging to a marginalized group, ethnic origin, language, citizenship, social origin, religion or religious beliefs, also education, political affiliation, personal or social status, mental and bodily disability, age, family or marital status, property status, health condition or any other grounds or characteristics3 established by law or by ratified international agreements (Article 5 sub-par 3). Direct discrimination is stipulated in the Law as any disadvantageous act, distinction, exclusion or limitation based on one or more of the above characteristics that results or could result in the suspension, violation or limitation of the equal recognition or enjoyment of human rights and fundamental freedoms, when compared to the treatment of another person in same or similar conditions (Article 6 par 1). Indirect discrimination is defined as the placing of any person or group at a disadvantage in comparison to other persons (in similar situations), by adopting provisions or criteria, or by undertaking certain activities or practices that are neutral by content, except where those provisions, criteria or practices result from a justified aim, and the means for achieving that aim are adequate and necessary (Article 6 par 2). The Law also contains definitions of harassment (Article 7 par 1), sexual harassment (Article 7 par 2), discrimination of persons with disabilities (Article 8), inciting to discrimination (Article 9), the disadvantageous treatment of a person who reported discrimination, instigated proceedings on discrimination or testified to such practice during the proceedings (victimization) (Article 10), discrimination in providing goods and services (Article 11), and more serious forms of discrimination such as multiple discrimination (involving more grounds), repeated or prolonged discrimination, or discrimination whose consequences have seriously affected the person concerned (Article 12).
According to the Anti-Discrimination Law, effective protection is a system of accessible and effective mechanisms for initiating procedures in case of complaints of discrimination, and the existence of independent and objective structures which act on such complaints, and which will also impose sanctions prescribed by law for particular violations of rights (Article 5 indent 7). Under the Anti-Discrimination Law, the Commission against Discrimination (hereinafter “the Commission”) is designed as an autonomous and independent body (whose members are appointed by the Parliament), empowered, inter alia, to act upon complaints by providing opinions and recommendations in cases of discrimination. The Commission may also provide information to the complainants regarding their rights and options to instigate judicial or other proceedings, and initiate proceedings for protection of individuals’ respective rights and freedoms before other competent bodies (Articles 16-33). The Anti-Discrimination Law also entitles persons concerned to initiate court proceedings (Articles 34-36) and stipulates that the burden of proof rests on the respondent party, except in criminal and misdemeanour proceedings (Article 38). Misdemeanour provisions of the Anti-Discrimination Law stipulate fines for natural and legal persons who have breached the substantive provisions of this Law (Articles 42-45).
Various Mechanisms for Protection from Discrimination
The Ombudsman and his/her office, in the context of his/her overall duty to protect the rights of individuals from acts or omissions of public administration, is also obliged to protect persons from discrimination, and monitors the adequate and equitable representation of members of communities in public bodies, that is, state/local self-government/other public institutions and offices (Article 77 par 2 of the Constitution, supplemented by the 2001 Amendment XI par 2, and Articles 2, 11, 13, 21, 28, 29 and 33 of the Law on Ombudsman of 2003, amended in 2009). The Ministry of Labour and Social Policy ensures equal treatment in the spheres of employment, labour rights and social protection through its Equal Opportunities Department. The Parliament has a Commission for Equal Opportunities of Women and Men and a Standing Survey Commission for the Protection of Freedoms and Rights of the Citizen. Judicial institutions (notably courts) are held to protect individuals from discrimination in the context of their overall duty to protect human rights and freedoms, or upon particular actions and complaints submitted by individuals or public bodies (including criminal proceedings which involve prosecution on account of discriminatory treatment amounting to a criminal offence).
Constitutional Complaints and Criminal Law Provisions
The Constitutional Court is competent to consider individual complaints relating to, inter alia, the discrimination of citizens on the grounds of sex, race, religious, national, social and political affiliation (Article 110 indent 3 of the Constitution) and to decide on the conformity of laws to the Constitution and on the conformity of by-laws to the Constitution and laws (Article 110 indents 1 and 2 of the Constitution). In principle, such decision on the conformity/non-conformity of laws or by-laws with Article 9 of the Constitution acquires legal effect from the day of its publication in the "Official Gazette". These decisions rarely have retrospective legal effect.
Penalties (imprisonment) for discriminatory treatment are prescribed by the Criminal Code of 1996 (last amended in 2011) for the criminal offences of "racial and other discrimination" (Article 417), or "breach of equality of citizens", committed through the deprivation or limitation of a right or by providing preferential treatment on the grounds of sex, race, colour of skin, national and social origin, political and religious belief, property and social position, language or other personal traits or circumstances (Article 137). Moreover, the Criminal Code criminalizes the "breach of the right to use language and alphabet" (Article 138), and an aggravated form of the offence of "insult", committed by means of the public mockery (through electronic systems) of a person due to his/her belonging to a certain community, ethnic or racial group or religious determination (Article 173 par 2). Also, the criminal offences of "causing national, racial or religious hate, discord and intolerance" (Article 319) and “spreading racial and xenophobic materials through a computer system" (Article 394-d) are relevant in this context, as are sanctions for the denial, approval, or justification of crimes against humanity (prescribed in Articles 403 - 406) if such activities were based, inter alia, on a person's ethnic or racial affiliation or religious belief (Article 407-a par 2).
Anti-Discrimination Clauses in other Legislation
Anti-discrimination provisions in the sphere of labour prohibit discrimination and/or placing a person in an unequal position on discriminatory grounds (Articles 6 and 249-a par 1(5) of the Law on Labour Relations of 2005, last amended in 2012, Article 4 par 7 of the 2007 Law on Employment and Work of Foreigners (last amended in 2011) and Article 9 of the 2007 Law on Volunteerism (amended in 2008), whose Article 22 indent 2 stipulates a fine for unequal treatment). The Law on Labour Relations also prohibits harassment and sexual harassment (Article 9 par 1) and psychological harassment at the working place - mobbing (Article 9-a par 1, amended in 2009), characterising both types of harassment as discrimination (Articles 9 par 2 and 9-a par 2). A candidate for employment or employee claiming to have been discriminated is entitled to damages in accordance with the 2001 Law on Torts (last amended in 2009) and the burden of proof that no discrimination has occurred rests on the respondent party, unless that party proves that the different treatment has been applied due to permissible exceptions set forth in Article 8 (Articles 10, 11 pars 1 and 2 and 181 par 6 of the Law on Labour Relations).
Discrimination is also prohibited in the spheres of social protection (by Articles 20 and 21 of the 2009 Law on Social Protection (last amended in 2011), whose Article 254 par 1(1) prescribes fines for discriminatory conduct), pension insurance (Article 3 of the 2007 Law on Voluntary Capital Finance Pension Insurance (last amended in 2011)) and health care (Article 5 par 2 of the 2008 Law on the Protection of the Rights of Patients (last amended in 2011) and Article 2 of the 1991 Law on Health Protection, last amended in 2011)). Equal treatment of citizens by state servants is an obligation stipulated by the by-law Code of Ethics for State Servants of 2011, (Article 2 par 3 and Article 3 par 3). Clauses prohibiting discrimination may also be found in many other pieces of legislation of the State, ranging from political parties and elections legislation, to education laws and others.
Gender equality is promoted by the 2012 Law on Equal Opportunities of Women and Men (replacing the 2006 Law), which determines basic (normative and policy) and special (positive, encouraging and programmatic) measures for the purpose of establishing equal opportunities and combating discrimination (Articles 5, 6 and 7). This Law applies both to the public and private sector in the areas of, inter alia, health care, social protection, access to goods and services, economy, property and labour relations, education and vocational training, culture, and sports, defence and security, judiciary and administration, public information and media, and other areas of public life (Article 1 par 2, Article 2 and Article 3 par 1). The Law on Equal Opportunities of Women and Men also prohibits discrimination, harassment or sexual harassment, specifically mentioning particular areas where equal treatment shall be ensured, such as the access to employment (Article 3 pars 3-7). Its misdemeanour provisions prescribe fines for breaching the Law (Articles 38-44). The Law establishes a special administrative procedure for determining unequal treatment between women and men and mandates the Representative for Equal Opportunities between Women and Men (a civil servant employed in the Ministry of Labour and Social Policy) to conduct this procedure (Articles 20-30). This law also entitles the persons concerned to initiate legal proceedings in which (except in criminal proceedings) the burden of proof rests with the respondent party (Articles 33-36).
The 2000 Law on the Protection of Children (consolidated text of 2010, last amended in 2011) prohibits direct and indirect discrimination of children, parents and legal guardians on grounds of race, colour of skin, sex, language, religion, political or other belief, nationality, ethnic or social origins, cultural or other affiliation, property status, disability, birth or other status (Articles 9, 9-a and 9(b)). The Law on the Protection of Children sanctions discriminatory conduct by stipulating disciplinary liability of officials and fines for natural and legal persons (Article 9c) and also entitles alleged victims to appeal in administrative proceedings (Article 9-d). In court proceedings, the burden to prove that no discrimination occurred rests with the respondent party, except in criminal and misdemeanour proceedings (Article 9i). This law also stipulates a right to third-party intervention for citizen associations or other organizations protecting equal treatment in respect of certain rights (Article 9j), while these or similar human rights organizations may initiate court proceedings on behalf of the affected individuals, provided that they complain about unequal treatment of a larger group of persons (Article 9m).
Affirmative Measures
Affirmative measures are stipulated by the Anti-Discrimination Law as activities of competent State bodies, which are aimed at the prevention of and protection against discrimination, or at decreasing or eliminating factual inequality that has resulted from previous discrimination (Article 5 indent 1 and Article 13). The Anti-Discrimination Law refers to nine types of different treatment which shall not be deemed discriminatory (Article 14), including different treatment of nationals and non-nationals, different treatment in profession, professional or religious activity based upon religion, belief, sex or other characteristic, provided that the different treatment is justified by a legitimate aim pursued. In addition, Article 14 further excludes from the scope of the law wedlock, common-law marriage and family, which shall be regarded exclusively as communities of opposite sexes; further the different beliefs and practices of members and bodies of religious, political and civil society organizations, and the stipulation of minimum or maximum age as a requirement or criterion in the process of employment and work, if such distinction is necessary and proportionate to the aim pursued. Article 15 of the Anti-Discrimination Law lists nine mechanisms of protection of certain categories of persons, stipulating that it shall not be discriminatory to provide special protection to, inter alia, a pregnant woman and mother (unless she waived this right and gave notice to her employer about the waiver), to apply measures for ensuring balanced representation of women and men (as long as needed), or to stimulate employment to ensure the equality of persons or groups placed at a disadvantageous position on any discriminatory grounds (as long as needed). Further mechanisms involve special protection of children without parents, minors, single parents and disabled persons (provided that these measures are prescribed by law), education and training of disabled persons, measures protecting the particularity and identity of religious, linguistic and ethnic minorities or education of the latter (as long as needed).
The Constitution stipulates that ethnic minorities (called “communities” by the amended Constitution of 2001) shall benefit from a general non-discrimination guarantee, as well as from affirmative measures fostering their inclusion in society (education, employment, politics etc.) and the use of their language. According to Article 48 of the Constitution, members of these communities are entitled to freely express and foster their identities and ethnic particularities and to display their national symbols, to establish cultural and art institutions, scientific and other associations, and to educate and be educated in their native language in primary and secondary education. Adequate and equitable representation of citizens belonging to all communities in State bodies and other public institutions at all levels is one of the fundamental values of the constitutional order (Article 8 par 1 indent 2 of the Constitution, supplemented by the 2001 Amendment VI).
Ethnic communities are also covered by the so-called “Badinter principle” on a qualified majority in decision-making/voting within the Parliament regarding laws that directly affect culture, use of language, education, personal documentation and use of symbols. This principle, in addition to requiring the overall majority of votes of members of the Parliament present at a Parliamentary session, also requires the majority of votes of the present members of the Parliament belonging to non-majority communities (Article 69 of the Constitution, replaced by the 2001 Amendment X). A similar "qualified" majority (involving the majority of votes of municipal council members belonging to non-majority communities) is required for the adoption of municipal councils' regulations relating to culture, use of language and alphabet spoken by less than 20% of the citizens and the establishment and use of the municipal seal and flag (Article 41 par 3 of the 2002 Law on Local Self-Government). The Parliamentary Committee for Relations between the Communities is competent to resolve disputes (arising within the Parliament) regarding the application of the above Badinter principle, as well as to consider and propose solutions related to issues of relations between the communities in the State (Article 78 of the Constitution, replaced by the 2001 Amendment XII). The Law on Local Self-Government envisages the establishment of commissions for relations between the communities in any municipality in which the number of members of a certain community exceeds 20% (Article 55). The principle of adequate and equitable representation of members of communities in public bodies is mentioned in the 2000 Law on State Servants (Articles 4, 22, 114 and 135), the 2010 Law on Public Servants (Article 6 par 2), the 2006 Law on the Judicial Council (Article 6 par 1(2) and Articles 43 and 65), the 2007 Law on the Public Prosecution Office (Article 43 par 2 and Article 76 par 5), the 2010 Law on the Academy for Judges and Public Prosecutors (Articles 8 and 9), the 2009 Law on Internal Affairs (Article 48 par 1), the 2006 Law on Police (Article 96 par 1), the Law on the Ombudsman (Article 6), the 2007 Juvenile Justice Law (Article 144 par 4), the Law on Local Self-Government (Article 59), and other laws. Issues with regard to adequate and equitable representation fall within the mandate of a Government secretariat.
Furthermore, the Constitution states that the use of minority languages in communication with the central government and its regional bodies and with the local self-government bodies is permitted to persons belonging to communities that constitute at least 20% of the population in the State or in a particular unit of local self-government or to any other person using that language(s) (Article 7 of the Constitution, replaced by Amendment V). The 2008 Law on the Use of Language Spoken by at least 20% of the Citizens of the State and in Units of Local Self-Government (last amended in 2011) prescribes the use of language in the Parliament (Article 3), communication between citizens and ministries (Article 4), criminal, misdemeanour, and civil court proceedings (Articles 5-13), administrative disputes (Article 14), general administrative procedure (Article 18), execution of sanctions procedures (Article 19), election process (Articles 21-25), issuance of personal documents (Articles 29-30), summons, arrest and apprehension of a person (Article 32), broadcasting (Articles 33-39), local self-government (Articles 41-43), education and science (48-53), culture (Articles 54-56), publication of laws (Article 58) and other fields of law. Regardless of membership of any community, parties or other participants in court proceedings who do not understand or speak the language used in court are entitled to an interpreter (Article 9 of the 2010 Law on Criminal Procedure (applicable as of 2012), Article 6 of the 2005 Law on Civil Procedure (consolidated text of 2011) and Article 19 of the 2005 Law on General Administrative Procedure (last amended in 2011)).
The rights (in the spheres of employment, culture etc.) of citizens who belong to smaller (ethnic) communities are enhanced by the 2008 Law for the Promotion and Protection of Rights of Members of Communities who Constitute less than 20% of the State Population, which also established an Agency for the Accomplishment of Rights of the Communities (Articles 1, 2 and 3). Roma rights are promoted by programmatic and policy documents of the Ministry of Labour and Social Policy, including various national action plans and operative plans in the spheres of employment, housing, health and education. The document titled Revision of the National Action Plans from the "Decade for Roma Inclusion 2005-2015" and of the Strategy for Roma in the State for the period 2009-2011 was prepared in a participatory process involving members of the National Coordination Body on Roma issues, members of various ministries and state agencies and of the civil society sector and international agencies. In 2010 the Parliament issued a Declaration for the Promotion of the Position and Rights of Roma, thereby inviting all levels of society to contribute to the protection and promotion of Roma rights.
Article 35 par 3 of the Constitution provides special protection to persons with disabilities and conditions for their inclusion in social life. Persons with mental or physical disabilities, include, according to Article 4 of the Rulebook on Assessing the Specific Needs of Persons with Impediments in their Physical or the Intellectual Development (issued in 2000 by the Minister of Labour and Social Policy), persons with damaged eye-sight or hearing, impediments in voice, speech and language, bodily disabilities, persons with mental retardation, autistic persons and persons with chronic diseases or persons with several types of disabilities. A disability of any kind is per se not a ground for any legal distinction in comparison to persons not having a disability. Furthermore, the relevant legislation and several by-laws provide for specific affirmative measures, such as home care and assistance, accommodation, vocational training, financial assistance, tax relief and many more.
Article 36 of the Constitution and a few other pertinent laws provide for affirmative measures for war veterans, or those who suffered disability or related loss while defending the State or previously acting/fighting in national interest.
Strategic policy documents involving affirmative measures and fostering inclusion of certain categories of people include, for example, the following documents issued by the Ministry of Labour and Social Policy: National Programme for the Development of Social Protection 2011-2021 (2010) and annual programmes for accomplishment of social protection, National Strategy for Decrease of Indigence and Social Exclusion 2010-2020, Strategy on Intensifying the Social Inclusion of Roma in the Social Protection System for the period 2012-2014 (2011), National Action Plan for Gender Equality 2007-2012 (May 2007), National Strategy for Protection from Family Violence 2008-2011 (April 2008), Programme for the Development of Children Protection for 2011, National Strategy for Elderly Persons 2010-2020 (June 2010), Strategy for Integration of Refugees and Foreigners in the State 2008-2015 (December 2008), and Revised National Strategy for Equating the Rights of Persons with Disability 2010-2018.4
Analysis provided by Zoran Gavriloski, Legal Consultant, Skopje
Uploaded in March 2012
1 Various EU Directives (available at: http://eur-lex.europa.eu/en/dossier/dossier_23.htm) guided the adoption of anti-discrimination legislation in the field of labour law and gender equality (for more information, please visit the website of the Ministry of Labour and Social Policy at: http://www.mtsp.gov.mk).
2 See Document of the Copenhagen Meeting of the Conference on the Human Dimensions of the CSCE, Copenhagen, 29 June 1990, para 5.9, 31; Ministerial Council Decision No. 10/05, “Tolerance and Non-Discrimination: Promoting Mutual Respect and Understanding”, Brussels, 6 December 2005, par 51.
3 Discrimination on the ground of sexual orientation was not explicitly included in the Anti-Discrimination Law.
4 This documents are available at: http://www.mtsp.gov.mk.
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