CDL-REF(2014)030

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW

(VENICE COMMISSION)

COMMENTS

ON THE AMENDMENTS TO THE CONSTITUTION

OF "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

by Ms Jasna OMEJEC (Member, Croatia)

CONTENT

I. INTRODUCTION 1

II. PRELIMINARY REMARKS 1

A. Scope 1

B. The amendment procedure of the Macedonian Constitution 1

C. Background 2 1. Summary of the Amendments 3

III. CONSIDERATION OF THE 2014 DRAFT AMENDMENTS RELATED TO THE JUDICIARY AND HUMAN RIGHTS ISSUES 4

A. DRAFT AMENDMENT XXXVIII (Composition of the Judicial Council) 4 1. The Composition of the Judicial Council under the 2005 Constitutional Amendment XXVIII 4 2. The 2014 Draft Constitutional Amendment XXXVIII 5

1.1. Members of the Judicial Council belonging to the non-majority communities 6 1.2. The new composition of the Judicial Council proposed by the 2014 Draft Constitutional Amendment XXXVIII 7 1.3. The parliamentary majority required for election of the members of the Council 9

B. DRAFT AMENDMENT XXXIX (Competences of the Macedonian Constitutional Court) 10 1. AMENDMENT XXXIX - PART ONE (Constitutional complaint/appeal) 10

1.1. Article 110, indent 3 of the Macedonian Constitution 11 1.2. The 2014 Draft Constitutional Amendment XXXIX 13

2. AMENDMENT XXXIX - PART TWO (Appeals against the decisions of the Judicial Council) 17

C. DRAFT AMENDMENT XXXIII (Definition of marriage and 'registered cohabitation' or any other form of registered life partnership) 18

IV. CONSIDERATION OF THE 2014 DRAFT AMENDMENTS RELATED TO BUDGETARY, FINANCIAL AND ECONOMIC ISSUES 21

B. DRAFT AMENDMENT XXXV (National Bank) 21

C. DRAFT AMENDMENT XXXVI (The State Audit Office) 24

A. DRAFT AMENDMENT XXXIV (International Financial Zone) 25

D. DRAFT AMENDMENT XXXVII (Limit of the budget deficit and of public debt) 26

V. CONCLUSIONS 27

APPENDIX concerning the constitutional definition of marriage (Excerpts from the Croatian Constitutional Court Communication on the Citizens' Constitutional Referendum on the Definition of

Marriage, No. SuS-1/2013, 14 November 2013, Official Gazette no. 138/13) 29

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I. Introduction

1. On 5 August 2014 the Minister of Justice of the "The Former Yugoslav Republic of Macedonia" (FYROM), Mr Adnan Jashari, requested the opinion of the Venice Commission on the Draft Amendments XXXIII - XXXIX to the Macedonian Constitution (hereinafter: "the 2014 Draft Constitutional Amendments").1 2. In the framework of the preparation of the requested legal opinion of the Venice Commission (hereinafter: the 2014 Opinion), a series of meetings were held in Skopje, on 8-9 September 2014. 3. English translation of the 2014 Draft Constitutional Amendments was transmitted by the Macedonian authorities. However, these comments indicate part of the translated text that slightly differs from the original version (see para. 56 of these Comments).

II. Preliminary Remarks

A. Scope

4. The present Comments pay particular attention to the 2014 Draft Constitutional Amendments concerning the composition of the Judicial Council, the competences of the Constitutional Court, as well as the constitutional definitions of marriage, common-law marriage and all other forms of registered life partnership (paras. 14-64). They also include an overview of the amendments related to budgetary, financial and economic issues (paras. 65-84). However, these amendments are not examined in detail. Only few observations are given from the strict legal points of view. These observations also arise from the Croatian experience acquired during the negotiation process with the EU. 5. The Venice Commission has already dealt with the 2005 Draft Amendments to the Macedonian Constitution regarding the reform of the judicial system (hereinafter: the 2005 Opinion).2 The 2005 Constitutional Amendment XXVIII concerning the composition of the Judicial Council is now proposed to be changed again.

B. The amendment procedure of the Macedonian Constitution

6. Amending the Macedonian Constitution is a rather complex procedure with clearly set up procedural steps and deadlines for most of them. According to Article 131 of the Macedonian Constitution, decision to initiate a change in the Constitution is made by the Parliament (Собрание на Република Македонија) by a 2/3 majority vote of the total number of MPs (123). Draft amendment to the Constitution is confirmed by the Parliament by a majority vote of the total number of MPs and then submitted to public debate. Decision to change the Constitution is made by the Parliament by a 2/3 majority vote of the total number of MPs. Change of the Constitution is declared by the Parliament.

1 CDL-REF(2014)030 Draft Amendments (XXXIII, XXXIV, XXXV, XXXVI, XXXVII, XXXVIII and XXXIX)

to the Constitution of "the former Yugoslav Republic of Macedonia” concerning, in particular, the Judicial Council, the competence of the Constitutional Court, and the State Audit Office and Explanatory Note, Opinion 779/2014, Strasbourg, 19 August 2014.

2 CDL-AD(2005)038 Opinion on Draft Constitutional Amendments concerning the Reform of the

Judicial System in "the Former Yugoslav Republic of Macedonia' adopted by the Commission at its 64

th plenary session (Venice, 21-22 October 2005), Opinion no. 355/2005, Strasbourg, 8 November

2005.

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7. Some changes of the Constitution require a 2/3 majority vote of the total number of MPs, within which there must be a majority of the votes of the total number of MPs claiming to belong to the communities that are not in the majority in the population of Macedonia (hereinafter: the non-majority communities).3 This double majority (or the so-called Badinter rule) aims at protecting the ethnic minority from being outvoted by the ethnic majority. This rule relates to a decision to amend: the Preamble; the articles on local self-government; Article 131; any provision relating to the rights of members of communities, including in particular Articles 7, 8, 9, 19, 48, 56, 69, 77, 78, 86, 104 and 109, as well as a decision to add any new provision relating to the subject matter of such provisions and articles of the Macedonian Constitution.

C. Background

8. On 27 June 2014, the Macedonian Government adopted Draft decision to commence an initiative for amending the Constitution of the Republic of Macedonia (Предлог одлука за пристапување кон иницијатива за измена на Уставот на Република Македонија). The Draft decision contained orientations for eight amendments to the Constitution. It was submitted to the Parliament on 1 July 2014. The Parliament Committee on Constitutional Issues, chaired ex officio by the Speaker of Parliament (Mr. Trajko Veljanoski), supported the orientations on 15 July 2014. The Decision to commence an initiative for amending the Constitution of the Republic of Macedonia were adopted on 16 July 2014 by a 2/3 majority vote (82) of the total number of MPs (123), in the absence of opposition (the Government coalition has 80 MPs, so support of two more MPs was needed). 9. On 29 July 2014, seven draft constitutional amendments were submitted to the MPs after the Government had forwarded them to the Parliament on 25 July 2014. President Veljanoski scheduled a meeting of the Committee on Constitutional Issues on 25 August 2014. By voting separately, this Committee adopted the 2014 Draft Constitutional Amendments. Two days later, on 27 August, the 2014 Draft Constitutional Amendments were debated in the Parliament. By a majority of 68 votes (among them, 19 votes of MPs claiming to belong to the non-majority communities) of the total number of MPs (123) the 2014 Draft Constitutional Amendments were confirmed. They have been submitted to a 30-day public debate. After that, the Government should propose to the Parliament the Final Draft of the 2014 Constitutional Amendments that would embed the remarks of the public debate. It seems that the procedure for adopting the 2014 Constitutional Amendments is expected to be finalised by the end of October 2014. 10. If it comes through, this will be the eighth reform of the 1991 Macedonian Constitution, and the third largest after the ones of 2001 related to Ohrid Framework Agreement implementation, and of 2005 related mostly to the reform of the judicial system. In the previous and failed attempt to amend the Constitution in September 2013, Democratic Union for Integration (Демократска унија за интеграција - DUI), one of the Albanian parliamentary political parties, had a few propositions for amending the Constitution (a bicameral Parliament, bilingualism in the whole territory of the state, the Badinter rule to apply in the decision making process in the Constitutional Court and adoption of the budget).

3 See 9. Annexes - Ohrid Framework Agreement 13, item 5.1. ("5.1. On the central level, certain

Constitutional amendments in accordance with Annex A and the Law on Local Self-Government cannot be approved without a qualified majority of two-thirds of votes, within which there must be a majority of the votes of Representatives claiming to belong to the communities not in the majority in the population of Macedonia."), at <http://www.popovashapka.com/framework_agreement_13English. htm_br> (accessed 22 August 2014). It actually means that, under such system, all decisions that affect the Albanian minority must not only be approved by the majority of all members of the Parliament, but also by the majority of all ethnic Albanian MPs.

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So far, there are no indications that these requests will re-emerge during the constitutional procedure or in the public debate. 11. Launching of the 2014 constitutional procedure makes return of the opposition to the Parliament even more relevant (the SDSM - Social-Democrat opposition refuses to recognise the legitimacy of the Government after early parliamentary elections held on 27 April 2014, and its MPs had not accepted their parliamentary mandates, calling for the formation of an interim government). In its 2014 Opinion, the Venice Commission should express the hope that, during the forthcoming stages of the constitutional process, there will be constructive dialogue and co-operation between the parliamentary majority and the opposition.

1. Summary of the Amendments

12. There are seven draft constitutional amendments, which concern eight different areas. They are very diversified by nature and scope. Some seem to be more or less in line with already pending recommendations (e.g. by the Venice Commission, GRECO, but also by EC Progress Reports, DG Budget mission reports, SIGMA, etc.). Others seem to have no connections with the European integration process but have strictly internal political meaning. The 2014 Draft Constitutional Amendments can be classified into two basic groups.

Draft Amendments related to the Judiciary and human rights issues:

Amendment XXXVIII ‒ Changing of composition of the Judicial Council

Amendment XXXIX (Part I) ‒ Introducing a constitutional complaint, i.e. the right of individual petition before the Constitutional Court on human rights issues

Amendment XXXIX (Part II) ‒ Introducing appeal before the Constitutional Court against decisions of the Judicial Council and the Council of Public Prosecutors Amendment XXXIII ‒ Introducing the constitutional definition of the marriage, common-law marriage and any other form of registered life partnership as unions solely between a man and a woman

Draft Amendments related to budgetary, financial and economic issues:

Amendment XXXIV ‒ Introducing basis in the Constitution for establishing of a "special financial zone" exempted from the general legal regulation by the Macedonian legislation in civil and administrative matters

Amendment XXXV ‒ Changing the name "National Bank of the Republic of Macedonia" into "the Bank of the Republic of Macedonia", setting its main objective and proclaiming its independence

Amendment XXXVI ‒ Defining for the first time the State Audit Office (SAO) in the Constitution, asserting independence of the SAO and giving the Parliament the right to select the Auditor General

Amendment XXXVII ‒ Introducing a limit of the budget deficit and of public debt

13. As it has been mentioned in para. 4, these Comments concentrate on the first group of issues related to the Judiciary and human rights.

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III. Consideration of the 2014 Draft Amendments related to the Judiciary and Human Rights Issues

A. DRAFT AMENDMENT XXXVIII (Composition of the Judicial Council)

14. The 2014 Constitutional Amendment XXXVIII is to replace the 2005 Constitutional Amendment XXVIII, which replaced original Article 104 of the 1991 Macedonian Constitution.4 According to the 2014 Draft Constitutional Amendment XXXVIII, the Macedonian Judicial Council (Судски совет на Република Македонија - hereinafter: "Council") is an autonomous and independent body of the judiciary. The Council shall ensure and guarantee the autonomy and independence of the judicial branch. The content of these provisions is the same as one prescribed in the 2005 Constitutional Amendment XXVIII.

1. The Composition of the Judicial Council under the 2005 Constitutional Amendment XXVIII

15. The 2005 Constitutional Amendment XXVIII, which is today in force, prescribes that the Judicial Council is composed of fifteen members, in the following way: - the President of the Supreme Court and the Minister of Justice are ex officio members of the Judicial Council; - eight members of the Council are elected by the judges from their own ranks. Three of them belong to the non-majority communities, ensuring that equitable representation of citizens belonging to all communities is observed; - three members of the Council are elected by the Parliament by the Badinter or double-majority votes of the total number of MP's; - two members of the Council are proposed by the President of the Republic and are elected by the Parliament, and one of them must belong to the non-majority communities. These members are from among university law professors, lawyers and other prominent jurists. 16. Article 26 of the 2006 Judicial Council Act has clarified the relatively vague constitutional provision on the ranks from which members nominated by the Parliament are to be elected (see indent 3 of the above para. 15). It prescribes that "members of the Council who are elected by the Parliament, as well as members of the Council who are elected by the Parliament on the proposal of the President of the Republic, shall be from among university law professors, lawyers and other prominent jurists.5 However, in 2013, two members of the Judicial Council were not elected "from among university law professors, lawyers and other prominent jurists", but from among judges. Accordingly, the present Judicial Council is composed of 10 instead of eight judges. 17. According to the 2005 Constitutional Amendment XXVIII, the members of the Council are elected for a term of six years, with the right to one re-election. The office of a member of

4 The Macedonian Parliament adopted the Amendment XXVIII at its session held on 7 December

2005. The original Article 104 of the 1991 Macedonian Constitution prescribed as follows: "The Republican Judicial Council is composed of seven members. The Assembly elects the members of the Council. The members of the Council are elected from the ranks of outstanding members of the legal profession for a term of six wears with the right to one re-election. Members of the Republican Judicial Council are granted immunity. The Assembly decides on their immunity. The office of a member of the Republican Judicial Council is incompatible with the performance of other public offices, professions or membership in political parties."

5 The Judicial Council Act (Закон за Судски совет на Република Македонија), Official Gazette No.

60/06, 150/10 and 100/11, at <http://www.pravda.gov.mk> (accessed 24 August 2014).

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the Council is incompatible with membership in political parties and with performance of other public offices and professions determined by law. The criteria and manner of election, as well as the basis and the procedure for termination of the mandate and dismissal of a member of the Council, are determined by law.

2. The 2014 Draft Constitutional Amendment XXXVIII

18. Regarding the 2005 Opinion of the Venice Commission, it seems worthy to draw attention to two issues. - First, the 2014 Draft Constitutional Amendment XXXVIII does not touch on the existing 2005 Amendment XXIX (Election and dismissal of judges by the Council), which the Venice Commission assessed in its 2005 Opinion.6 - Second, in its 2005 Opinion the Venice Commission expressed its doubts as to the necessity of having a Judicial Council as a full-time organ.7 A part of the 2014 Draft Constitutional Amendment XXXVIII prescribes that "the office of an elected member of the Council shall be incompatible with … performance of other public offices and professions defined by law". It indicates that the Council will continue to be a full-time organ. During the visit to Skopje, some interviewees (especially the Supreme Court judges) expressed their opinion that the Judicial Council should not be a full-time organ, considering the fact that Macedonia is a small country and that the Academy for Judges and Public Prosecutors has taken a decisive role in selecting candidates for judges and public prosecutors.8 Taking into account specific circumstances related to the appointment of judges in Macedonia, I think that the 2005 Venice Commission's opinion was correct and that there is no need for the Macedonian Judicial Council to be a full-time organ. I also invoke the Croatian experience, where there is State School for Judicial Officials (operating as an organisational unit within

6 CDL-REF(2014)030, paras. 46-54. See note 1.

7 CDL-REF(2014)030, paras. 44 and 45. See note 1. However, in its CDL-AD(2013)034 Opinion

relating to Ukraine the Venice Commission emphasized that the members of the Ukrainian High Judicial Council (HJC) "should exercise their functions as a full-time profession". Cf. CDL-AD(2013)034 Opinion on proposals amending the Draft Law on the amendments to the Constitution to strengthen the independence of judges of Ukraine, adopted at the 97

th Plenary Session, Venice, 6-7

December 2013, Opinion no. 747/2013, Strasbourg, 10 December 2013, para. 43. Thus, the Venice Commission has taken a different view in relation to the Ukrainian Judicial Council than the one expressed in its 2005 opinion concerning the Macedonian Judicial Council.

8 According to Article 67 of the Law on the Academy for Judges and Public Prosecutors (Закон за

Академијата за судии и јавни обвинители) (Official Gazette nos. 88/10, 166/12, 26/13), following the completion of the initial training, the participants in the initial training acquire the status of candidates for judges and public prosecutors. Following the completion of the initial training, and the acquisition of the status of candidates for judges and public prosecutors, until their appointment as judges and public prosecutors, the Academy directs the candidates for judge or public prosecutor to court, i.e. the Public prosecution office where they realized the second phase of the initial training, practicing the judicial or prosecutorial function. The appointment of judges and public prosecutors in the basic courts and the basic public prosecution offices from the list of candidates who have completed the initial training is carried out in accordance with the ranking based on the results in the final ranking of candidates. The first three candidates in the final ranking have the right to apply to be appointed as judges or public prosecutors in the appellate region where they completed the second phase of the initial training, or in any other appellate region. The remaining candidates for judges or public prosecutors in the ranking are obliged to apply to every announcement published for appointing judges in the basic courts or public prosecutors in the basic public prosecution offices. The candidate for judge or public prosecutor is obliged to work in the court or public prosecution office at least five years following their appointment. At <http://www.jpacademy.gov.mk/upload/PDF%20Files/LAW%20 ON%20THE%20ACADEMY%20Sept%20%202010-en.pdf> (accessed 13 September 2014).

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the Judicial Academy) with similar competences, and the State Judicial Council is not a full-time organ. 19. According to the 2014 Draft Constitutional Amendment XXXVIII, the members of the Council remain to be elected for a term of six years. However, unlike the current rule (see para. 17 of these Comments), the new rule proposes that the members of the Council would not have "the right to a consecutive re-election". It follows that the member of the Council would have the right to one re-election or more re-elections, but not consecutively. The conditions and procedure for election, and the grounds and procedure for termination of office and dismissal of a member of the Council remain to be governed by law. 20. The 2014 Draft Constitutional Amendment XXXVIII also prescribes that the Council is to be composed of fifteen members. - Ten members of the Council are to be elected by the judges from their ranks. Three of them are to belong to the non-majority communities, whereby the proper and equitable representation of the citizens belonging to all communities shall be observed. - Three members of the Council are to be elected by the Parliament by the Badinter or double-majority votes of the total number of MP's. These members are to be from among the ranks of university law professors, lawyers and other prominent jurists. - Two members of the Council are to be proposed by the President of the Republic and elected by the Parliament, and one of them must belong to the non-majority community. Both of them are to be from among the ranks of university law professors, lawyers and other prominent jurists, too.

1.1. Members of the Judicial Council belonging to the non-majority communities

21. Among 15 members of the Council that are to be elected by the judges from their ranks, at least four must belong to the non-majority communities, but their number could be higher. Namely, three members who are elected by the Parliament (by its own call for nominations of candidates) must be elected by the Badinter rule or double-majority vote from among the ranks of university law professors, lawyers and other prominent jurists. 22. Current composition of the Council is fully completed by 13 elected members. It seems that six current members belong to two of the non-majority communities (four members belong to Albanian community and two members belong to Vlach community). Three of eight members who were elected by the judges from their ranks belong to those communities. One member who belongs to one of those communities was elected by the Parliament on the proposal of the President of the Republic, but this candidate had been at the time of the election also a judge (see para. 16 of these Comments). Finally, one member of the Council who belongs to the non-majority community was elected by the Parliament (by its own call for nominations of candidates) by the Badinter rule or double majority of votes.9 23. In its 2005 Opinion, the Venice Commission has already stated that the provisions concerning representatives of the non-majority communities "are to be welcomed" (para. 40). It also stated that "there is no standard model that a democratic country is bound to follow in setting up its Judicial Council so long as the function of this Council fall within the aim to ensure the proper functioning of an independent Judiciary within a democratic State" (para. 47). The 2014 Draft Constitutional Amendment XXXVIII proposes mechanism that is the same as the one entailed in the Constitution, which has been a part of the Macedonian constitutional and legal order already nine years. Accordingly, I do not consider it necessary

9 Судски совет на Република Македонија, at http://www.ssrm.mk/OrganizacionaStruktura. aspx?

struktura=3 (accessed August 24, 2014).

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for the Venice Commission to express in the 2014 Opinion its views on whether the appropriate constitutional mechanism was chosen to ensure the proper representation in the Council of the non-majority communities or not. It would be more correct to assume that the ratio between members of the Council who belong to the majority and members who belong to the non-majority communities is properly balanced.

1.2. The new composition of the Judicial Council proposed by the 2014 Draft Constitutional Amendment XXXVIII

24. Under the 2014 Draft Constitutional Amendment XXXVIII, the Council remains to be composed of 15 members, but the Minister of Justice and the President of the Supreme Court of the Republic of Macedonia are no longer to be the members of the Council. Instead, the judges are to be represented by 10 members. Given that the two current members of the Council, who were elected by the Parliament, were judges at the time of the election, it follows that the current Judicial Council is to be composed of de facto 12 judges (if the 2014 Amendment XXXIII be adopted). 25. In CDL-INF(1998)009, the Venice Commission adopted the following legal standpoint:

"An autonomous Council of Justice that guarantees the independence of the judiciary does not imply that judges may be self-governing. The management of the administrative organisation of the judiciary should not necessarily be entirely in the hands of judges."10

26. In CDL-AD(2007)028,11 the Venice Commission adopted the following legal standpoints:

"27. A balance needs to be struck between judicial independence and self-administration on the one side and the necessary accountability of the judiciary on the other side in order to avoid negative effects of corporatism within the judiciary. In this context, it is necessary to ensure that disciplinary procedures against judges are carried out effectively and are not marred by undue peer restraint. One way to achieve this goal is to establish a judicial council with a balanced composition of its members.

(...) 29. As regards the existing practice related to the composition of judicial councils, "basic rule appears to be that a large proportion of its membership should be made up of members of the judiciary and that a fair balance should be struck between members of the judiciary and other ex officio or elected members." Thus, a substantial element or a majority of the members of the Judicial Council should be elected by the Judiciary itself. In order to provide for democratic legitimacy of the Judicial Council, other members should be elected by Parliament among persons with appropriate legal qualification taking into account possible conflicts of interest. 30. In general, judicial councils include also members who are not part of the judiciary and represent other branches of power or the academic or professional sectors. ... Moreover, an overwhelming supremacy of the judicial component may raise concerns related to the risks of 'corporatist management'.

10

CDL-INF(1998)009 Opinion on Recent Amendments to the Law on Major Constitutional provisions of the Republic of Albania, CDL-INF(1998)009, para. 12. This legal standpoint the Venice Commission has reiterated many times. 11

CDL-AD(2007)028 - Judicial Appointments, Report adopted by the Venice Commission at its 70th

Plenary Session (Venice, 16-17 March 2007), Opinion No. 403/2006, Venice, 22 June 2007.

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(...) 33. Although the presence of the members of the executive power in the judicial councils might raise confidence-related concerns, such practice is quite common. ... Such presence does not seem, in itself, to impair the independence of the council, according to the opinion of the Venice Commission. However, the Minister of Justice should not participate in all the council’s decisions, for example, the ones relating to disciplinary measures." [Notes omitted.]

27. In CDL-AD(2013)034,12 the Venice Commission examined the composition of the Ukrainian High Judicial Council (HJC). It concluded as follows:

"40. According to the Proposal, the HJC would have 15 members. The President of the Supreme Court would be ex officio member. 10 judges would be appointed by the Congress of Judges among judges from all levels and specialisations in a proportionate manner. The Bar and Academia would appoint two members each. ... Members would be appointed for 6 years and could not be reappointed. 41. The HJC would thus have 11 judges among its 15 members. This proportion seems even too high and could lead to inefficient disciplinary procedures. While calling for an appeal to a court against disciplinary decisions of judicial councils is required, the Venice Commission insists that the non-judicial component of a judicial council is crucial for the efficient exercise of the disciplinary powers of the council." [Highlighted added]

28. Finally, in its 2005 Opinion concerning the Macedonian 2005 Constitutional Amendment XXVIII (where eight members of the Council are proposed to be selected from among the judges), the Venice Commission stated:

"40. The proposed reform is to be welcomed as providing for a de-politisation of the appointment and removal of the Judiciary. In particular, the presence of a judicial majority on the Council is to be welcomed as are the provisions concerning representatives of the non-majority communities. 41. In order to minimise the influence of the executive, the mandatory membership of the Minister of Justice in the State Judicial Council could be changed to a right to be present at the sessions of the Judicial Council or membership without voting rights. The amendment provides that the President of the Supreme Court is also the president of the State Judicial Council. In order to strengthen the independence of the Council from the courts in respect of which it exercises its competences, an alternative would be to have the Council elect its president."

29. Accordingly, the 2006 Law on Judicial Council was amended in 2011 to make it clear that the Minister of Justice is a member without voting rights.13 Article 6, para. 2 of the Law on Judicial Council currently prescribes: "Minister of Justice as a member of the Council participates in the work of the Council without voting rights." Further, the 2005 Draft Amendment, which proposed that the President of the Supreme Court is to be also the president of the State Judicial Council, was eventually deleted. Instead, Article 8 of the 2006 Law on Judicial Council prescribed:

12

See note 7.

13 Article 1 of the Law on Amendments to the Law on Judicial Council of the Republic of Macedonia

(Закон за изменување и дополнување на Законот за судскиот совет на Република Македонија), Official Gazette no. 100/11 (25 July 2011).

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"President of the Council Article 8

The work of the Council is administered by the President. President of the Council shall be elected from among the members of the Council by a majority vote of the members who have the right to vote, by secret ballot. The mandate of the President of the Council shall last two years, without the right to be reappointed. ... The Minister of Justice and President of the Supreme Court of the Republic of Macedonia cannot be elected for the President and Vice President of the Council.

30. In principle, I do not consider it inappropriate to remove the Minister of Justice and the President of the Supreme Court from the Judicial Council. However, taking into account the aforementioned legal standpoints of the Venice Commission, it seems that there is no need for the new judicial component of the Judicial Council, as it is proposed in the 2014 Draft Constitutional Amendment XXXVIII (10 judges among its 15 members). Moreover, the parliamentary practice has shown that the number of judges can even be higher. Namely, the Macedonian Parliament considers admissible to choose the members of the Council (who are to be from among the ranks of university law professors, lawyers and other prominent jurists) among the judges (see paras. 16 and 24 of these Comments). In sum, this proportion seems to be too high having in mind that the non-judicial component of the Judicial Council is crucial for the efficient exercise of the disciplinary powers of the Council. It also seems that the existing problems relating to the composition and the functioning of the Macedonian Judicial Council have their origin not in the current constitutional arrangements, but in the current legislation and its implementation in practice. The proposed 2014 Constitutional Amendment XXXVIII would not be helpful in solving these problems.

1.3. The parliamentary majority required for election of the members of the Council

31. In its Report on Judicial Appointments, Venice Commission emphasized that it is "strongly in favour of the depoliticisation of such bodies by providing for a qualified majority for the election of its parliamentary component. This should ensure that a governmental majority cannot fill vacant posts with its followers. A compromise has to be sought with the opposition, which is more likely to bring about a balanced and professional composition".14 32. According to the 2005 Constitutional Amendment XXVIII, which is currently in force, as well as the 2014 Draft Constitutional Amendment XXXVIII, three members of the Council are to be elected "by a majority vote of the total number of Representatives, whereby there must be a majority vote of the total number of Representatives belonging to the communities that are not the majority in the Republic of Macedonia" (the so-called Badinter rule - see para. 7 and note 3 in these Comments). Furthermore, "[t]wo members of the Council are proposed by the President of the Republic of Macedonia, and are elected by the Assembly of

14

CDL-AD(2007)028, para. 32. See note 11. See also the Opinion no. 10(2007) of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on the Council for the Judiciary at the service of society, adopted by the CCJE at its 8

th

meeting (Strasbourg, 21-23 November 2007), Strasbourg, 23 November 2007. The Opinion reads as follows: "19. In the CCJE’s view, such a mixed composition [of judges and non-judges] would present the advantages both of avoiding the perception of self-interest, self-protection and cronyism and of reflecting the different viewpoints within society, thus providing the judiciary with an additional source of legitimacy. However, even when membership is mixed, the functioning of the Council for the Judiciary shall allow no concession at all to the interplay of parliamentary majorities and pressure from the executive, and be free from any subordination to political party consideration, so that it may safeguard the values and fundamental principles of justice."

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the Republic of Macedonia. One of them belongs to the communities that are not the majority in the Republic of Macedonia". 33. The rules on the parliamentary majority required for elections of the two members of the Council on the proposal of the President of the Republic must be clarified. Namely, both members of the Council who are proposed by the President of the Republic appear to be elected by simple majority rather than a majority vote of the total number of MPs. Or, given that the text is not sufficiently understandable, this is true for at least one of them (i.e. for the candidate who is of Macedonian ethnic origin). Shortly, apart from the application of the Badinter rule to candidates belonging to the non-majority communities, the Amendment XXXVIII should provide the same qualified majority of MPs for the election of all five candidates.

B. DRAFT AMENDMENT XXXIX (Competences of the Macedonian Constitutional Court)

34. The 2014 Draft Amendment introduces two significant novelties in the competences of the Macedonian Constitutional Court. The Court is to decide: - on a constitutional complaint/appeal to provide protection of individual constitutional rights; and - on an appeal against the decisions of the Judicial Council on the election of judges, dismissal or other disciplinary sanction pronounced against a judge or a president of a court, as well as decisions of the Council of Public Prosecutors on the election of public prosecutors, dismissal or other disciplinary sanction pronounced against a public prosecutor.

1. AMENDMENT XXXIX - PART ONE (Constitutional complaint/appeal)

35. It is proposed that item 1 of the 2014 Draft Constitutional Amendment XXXIX is to replace the indent 3 of Article 110 of the Macedonian Constitution. Accordingly, revised text of Article 110 of the Macedonian Constitution is to prescribe as follows (text of the 2014 Draft Constitutional Amendment XXXIX is written in italics):

"Article 110 The Constitutional Court of the Republic of Macedonia - decides on the conformity of laws with the Constitution; - decides on the conformity of collective agreements and other regulations with the Constitution and laws; - decides on a constitutional appeal lodged by a natural or legal person, against an individual act or action of a state body, a local self-government unit or holder of public mandates violating the freedoms and rights of the individual and citizen, as follows: the equality of the citizen in the freedoms and rights irrespective of sex, race, colour of skin, national and social origin, political and religious conviction, property and social status, the right to life, prohibition of torture, inhuman or degrading treatment, punishment and forced labour, the right to freedom of the individual, the right to presumption of innocence and a fair trial, freedom of conviction, conscience, thought and public expression of thought, the freedom of speech, public address, public information, and the free establishment of institutions for public information, the freedom and inviolability of correspondence and all other forms of communication, security and confidentiality of personal data, the freedom of confession, the freedom of association, the right to assembly and expression of public protest, respect and protection of the privacy of personal and family life, dignity and reputation, inviolability of the home, and the right to freedom of movement, when other domestic regular or

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extraordinary remedies for their protection have been exhausted or are not envisaged; (…)"

1.1. Article 110, indent 3 of the Macedonian Constitution

36. The indent 3 of Article 110 of the Macedonian Constitution, which is proposed to be replaced by the item 1 of the 2014 Draft Constitutional Amendment XXXIX, is now worded as follows:

"Article 110 The Constitutional Court of the Republic of Macedonia (...) - protects the freedoms and rights of the individual and citizen relating to the freedom of conviction, conscience, thought and public expression of thought, political association and activity as well as to the prohibition of discrimination among citizens on the ground of sex, race, religion or national, social or political affiliation; (...)"

37. The scope of the current constitutional framework of the protection of above-cited rights and freedoms described the Macedonian Constitutional Court as follows:

"Differing from constitutional and legal systems of a series of countries that provide for constitutional appeal, as distinct remedy for protection of human rights and freedoms, the Constitution of the Republic of Macedonia does not recognize the constitutional appeal as remedy for enforcing this type of protection. However, almost analogue to constitutional appeal, the direct protection of freedoms and rights may be enforced through the request for protection of human rights and freedoms. … The petitioner initiates procedure for protection of human freedoms and rights, for which it alleges that have been violated by final or valid individual act or activity."15

38. In all other European countries, the constitutional provisions on the Constitutional Court are further developed in a special law, or even constitutional law, enacted by the national Parliament. On the contrary, in Macedonia there is no special law enacted by the Parliament that would regulate the constitutional judiciary, i.e. conditions and terms for instituting proceedings before the Macedonian Constitutional Court (including procedure for the individual protection of human rights and fundamental freedoms), legal effects of the Court's decisions, issues relating to the status of judges, and other issues important for the functioning of the Court and carrying out its duties. Namely, Article 113 of the Macedonian Constitution prescribes "the working methods and the procedures before the Constitutional Court are regulated by an act of the Court". Accordingly, in Macedonia are in force only the 1992 Rules of Procedure of the Constitutional Court.16

15

The relations between the Constitutional Courts and the other national courts, including the interference in this area of the action of the European courts, Report of the Constitutional Court of the former Yugoslav Republic of Macedonia, Conference of European Constitutional Courts, XII

th

Congress, Brussels, 14-16 May 2002, pp. 8-9, at <http://www.confcoconsteu.org/reports/rep-xii/Macedonia-EN.pdf> (accessed 25 August 2014).

16 Rules of Procedure of the Constitutional Court of the Republic of Macedonia was adopted by the

Macedonian Constitutional Court on the meeting held on 7 October 1992, at <http://www.ustavensud.mk/domino/WEBSUD.nsf> (accessed 19 August 2014). Macedonian legal scholars have always pointed to the need to adopt a special law on the Constitutional Court. For example, Treneska emphasizes that "the Assembly of RM has not adopted the Law on Constitutional Court; so most of the questions about the work and status of the Constitutional Court are regulated by the Rules of the Procedure of the Constitutional Court. The constitutional provisions, which are too

12

39. It should be recalled that the Macedonian Government proposed in 2005 the Draft Constitutional Amendment XXXIV, which provided that the types of decisions of the Constitutional Court, their legal effect and enforcement are to be regulated by law while the internal organisation of the Court is to be regulated by the Court itself. In its 2005 Opinion the Venice Commission noted: "66. … The purpose is to fill a gap in the existing text and to provide a proper legal basis for the Court’s operation. While this is in full accordance with European standards in the field of constitutional justice (see also opinion on Turkey CDL-AD(2004)023, point 5 seq.) the amendment does not cover important elements of the activity of the Constitutional Court like the procedure before the Court. A coherent regulation of the activities of the Constitutional Court taking into account all aspects of its jurisdiction and operation would seem appropriate." However, the 2005 Draft Constitutional Amendment XXXIV has never entered into force. 40. The Rules of Procedure of the Constitutional Court, as well as Article 113 of the Macedonian Constitution as its legal basis, are not included in the present Comments. Thus, it is sufficient to note that in its 1992 Rules of Procedure the Constitutional Court has created an institute called "request/demand (барање) for the protection of freedom and rights in Article 110 Paragraph 3 of the Constitution". Some Macedonian scholars call it a "quasi-constitutional complaint" (Renata Treneska-Deskoska).17 The very limited catalogue of constitutional rights listed in Article 110 Paragraph 3 of the Constitution together with the procedural rules prescribed in Section IV of the 1992 Rules of Procedure, as well as the way in which the Constitutional Court interprets these rules in its case-law, result in a negligible number of requests before the Court. In the course of 2013, the Macedonian Constitutional Court had a total of 22 requests/demands for protection of rights and freedoms on the basis of Article 110, indent 3 of the Macedonian Constitution (25 requests/demands were filed in 2012 and 23 requests/demands were filed in 2011). In 2013, the Court decided on 12 cases (10 requests/demands related to the protection against discrimination and two requests/demands related to the protection of freedom of conviction, conscience, thought and public expression of thought). Six requests/demands were rejected due to lack of jurisdiction of the Court, and seven requests were rejected due to procedural obstacles.18

basic and too modest, and non-existence of the Law, which will regulate the questions connected with the Constitutional Court, gave a lot of space to the Constitutional Court to regulate its status by itself. It is not a positive characteristic of the constitutional system of RM, because it contains possibility the principle of 'check and balance' to be violated.", Renata Treneska: The Constitutional Court of the Republic of Macedonia: Proposals for Legislative and Administrative Reform, International Policy Fellowship Program 2003/2004, Center for Policy Studies, Central European University and the Open Society Institute, Budapest, 2004, p. 17. at <http://pdc.ceu.hu/archive/00001916/01/treneska.pdf> (accessed 26 August 2014). See also Blaže Krcinski, Some problems of constitutional control in Macedonia (Neki problemi ustavnosudske kontrole u Makedoniji), Croatian and Comparative Public Administration (Hrvatska i komparativna javna uprava), Zagreb, Vol. 11 (2011), no 2, pp. 481-482.

17 Cf. Jordan Arsov, The role of the Constitutional Court of the Republic of Macedonia in the protection

of freedoms and rights of man and citizen violated by an individual act or action (Улогата на уставниот суд на Република Македонија во заштита на слободата и правата на човекот и граѓанинот повредени со поединечен акт или дејство), Legal Dialogue (Правен Дијалог) no. 3, 24 June 2011, note 18, at <http://www.ihr.org.mk/mk/praven-dijalog/praven-dijalog-br3/133-uloga-na-ustavniot-sud-na-rm.html> (accessed 26 August 2014).

18 The Constitutional Court of the Republic of Macedonia, Annual Report 2013 (Преглeд за

работата на Уставниот суд на Република Македонија за 2013 година), Skopje, February 2014, at <http://www.ustavensud.mk/domino/WEBSUD.nsf> (accessed 25 August 2014). In comparison, the Croatian Constitutional Court filed in 2013 a total number of 5,834 constitutional complaints and decided on 6,554.

13

41. As to the catalogue of rights and freedoms prescribed in Article 110, indent 3 of the Macedonian Constitution, the Macedonian Constitutional Court noted the following:

"… it is important to state that contrary to other countries that provide for constitutional protection of all constitutionally guaranteed human rights and freedoms, the Constitution of the Republic of Macedonia is rather restrictive, opting for the system of positive enumeration of the freedoms and rights, protection of which is in the competence of the Constitutional Court. Namely, the Constitutional Court of the Republic of Macedonia protects the human rights and freedoms in respect of the freedom of belief, conscience, thought and public expression of thought, political association and activity and the ban on discrimination of citizens based on gender, race, religion, national, social and political affiliation. Thus, the restricted competence of the Court to protect only certain personal and political freedoms and rights and not the socioeconomic and cultural human freedoms and rights, the protection of which falls in the competence of other constitutionally determined entities, is clearly seen. Such a limited provision is narrowing the scope of activity of the Constitutional Court in respect to protection and safeguarding the efficient attainment of freedoms and rights. It also makes individual referral in respect of protection of other constitutionally guaranteed freedoms and rights, for which the Court is not competent to decide, as inadmissible."19

1.2. The 2014 Draft Constitutional Amendment XXXIX

42. Perhaps it could be worth considering whether it would be appropriate for the Venice Commission to note that the 2014 Draft Constitutional Amendment XXXIX comes at a time when there are increasing concerns about politicisation of the Constitutional Court and the Judiciary.20 This remark is also based on the 2013 findings of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, who highlighted allegations that the Constitutional Court's independence had been affected and that the Court had started to delay and compromise on decisions.21 Thus, the Venice Commission should not ignore the possibility that an increased transfer of powers to the Constitutional Court at this very moment could be seen as a continuation or even exploitation of that trend. The revisions of the Constitution should not embody any hidden political agenda. The Constitution should not be a blind copy of the instantaneous political relations and aspirations.

19

See note 15.

20 Cf. Interview with Margarita Caca Nikolovska, international Judge of the Constitutional Court of

Bosnia and Herzegovina and the former judge of the ECtHR "Politics must first take their hands off the judiciary", 2 July 2014, VIDEO at http://lokalno.mk/videocaca-nikolovskamora-politikata-prvo-da-gi-trgne-racete-od-sudstvoto/ (accessed 26 August 2014).

21 In the Report of the UN Special Rapporteur on the promotion and protection of the right to freedom

of opinion and expression on his mission to the former Yugoslav Republic of Macedonia (18-21 June 2013, A/HRC/26/30/Add.2), the Special Rapporteur "was further concerned by the allegations he received regarding the interference of governmental authorities with the independence of judges and lawyers. The recent appointment of five members of the Constitutional Court, for example, is alleged to have directly affected the independence of this body, which has started to delay and compromise on decisions, including in recent cases related to the right to freedom of expression. Furthermore, the Constitutional Court does not have the administrative and financial autonomy to perform its work with the required independence. All human rights are at great risk without the protection of a fully independent judicial system. The Special Rapporteur therefore emphasizes that urgent responses are needed to identify carefully and eliminate all possible avenues of interference in the work of the judiciary" (§ 34).

14

43. On the other hand, the alleged current weaknesses of the democratic state bodies and public institutions should not be a main reason for the a priori rejection of all initiatives of the Government, including also those that, objectively speaking, could contribute to improvement of the current situation of the protection of human rights and fundamental freedoms at the constitutional level. In general, the Constitutional Court is considered a cornerstone of constitutional democracy.22 The Venice Commission has already particularly welcomed that some other states provided for the possibility of constitutional complaints/appeals by individuals for human rights violations.23 There is neither a state body or public institution nor legal remedy or other legal instrument, which could take over the function and purpose of the constitutional complaint/appeal before the Constitutional Court. The constitutional complaint/appeal mechanism cannot be substituted by the complaint mechanism before the Office of the Ombudsman or any other mechanism before domestic institutions. 44. According to the Macedonian media reports, the predominant public belief is that, rather than strengthening the domestic human rights framework, the 2014 Draft Constitutional Amendment XXXIX is going to efficiently prevent or block citizens from making applications to the ECtHR. In other words, there is a concern that by introducing the constitutional complaint/appeal together with the requirement to exhaust it before an application is made to the ECtHR the number of admissible applications before the ECtHR will be dramatically reduced.24 In this connection, it must be reiterated that "[t]he obligation to exhaust domestic remedies requires ... that an applicant make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances ..."25 So, it is exclusively for the ECtHR to establish whether the Macedonian constitutional complaint/appeal is an effective domestic legal remedy in the meaning of Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the ECHR). Moreover, it would be for the Macedonian Government to prove to the ECtHR that the constitutional complaint/appeal is effective, both in theory and in practice.26 45. In sum, it seems that there is no objective and fully justified reason for opposing the introduction of the "full" constitutional complaint/appeal in the Macedonian legal system. The

22

Antonio La Pergola, Introductory statement. In: The role of the Constitutional court in the consolidation of the rule of law, Proceedings of the UniDem Seminar organized in Budapest on 8-10 June 1994, Strasbourg: Council of Europe Press, 1994, p. 12.

23 See, for example, CDL-AD(2007)004 Opinion on the Constitution of Serbia, adopted by the

Commission at its 70th Plenary session (Venice, 17-18 March 2007), Opinion No. 405/2006,

Strasbourg, 19 March 2007, § 82.

24 Cf. Analysis of the need for changes to the Constitution by university professors Ljubomir D.

Frčkoski and Osman Kadriu "Constitutional amendments are political spin" (Уставните измени се политички спин), 2 July 2014, VIDEO at http://24vesti.mk/ekspertite-se-somnevaat-vo-potrebata-za-izmeni-vo-ustavot (accessed 26 August 2014).

25 ECHR, Case of Srbić v. Croatia (dec.), 21 June 2011, no. 4464/09.

26 Cf. case of Uzun v. Turkey ((dec.), 30 April 2013, no. 10755/13), where the ECtHR examined a new

remedy before the Turkish Constitutional Court, which now has jurisdiction to examine individual applications concerning the fundamental freedoms and rights protected by the Constitution and by the ECHR and Protocols thereto, after ordinary remedies have been exhausted. After examining the practical aspects of the new remedy, such as its accessibility and the provisions for lodging an individual application, the legislature’s intentions in creating the new procedure, as regards the scope of the Constitutional Court’s jurisdiction, the means granted to it, and the extent and effects of its decisions, the ECtHR found that Turkey has introduced an accessible and effective constitutional remedy. In spite of that, the ECtHR reserved the right to examine the consistency of the Constitutional Court’s case-law with its own practice. It would be for the Turkish Government to prove that the remedy is effective, both in theory and in practice.

15

introduction of this constitutional remedy could not lead to a deterioration of the existing degree of the protection of human rights and fundamental freedoms guaranteed by the Macedonian Constitution. On the contrary, it seems that a constitutional complaint/appeal could fill the gap in the Macedonian legal system of the protection of individual constitutional rights given the fact that the existing instrument (request/demand under Article 110, indent 3 of the Constitution) has achieved no significant result in the practice. When speaking of the idea of constitutional complaint/appeal in relation to the ECtHR, it is important to bear in mind the subsidiary nature of the ECHR control mechanism and the obligation of the States Parties to the ECHR to ensure within their national law the effective implementation of the ECHR. The choice as to the most appropriate means for achieving this obligation is in principle a matter for the domestic authorities.27 To this end, I support the postulate of the ECtHR judge Zupančič that "the existence of a constitutional complaint in a State's legal system seems … to provide the happiest medium for interaction between national constitutional law and the law of the European Court of Human Rights". Moreover, "only when the citizen-plaintiff alleges a concrete, new and different breach of a particular constitutional (or human) right do the abstract principles of the constitution (or the Convention) emerge in a new light. Once again, they become the immediate basis of constitutional litigation. Through constitutional review of individual complaints, practically all the aspects of the legal system may be tested and (dis)confirmed. Case-law, a by-product of this empirical process, now represents the lion's share of modern constitutional law."28 46. Thus, the introduction of a constitutional complaint/appeal is welcomed and appears to be in line with international standards. However, it seems that some additional requirements have to be fulfilled to ensure the full effectiveness of the functioning of the Macedonian Constitutional Court and to help the Court in reducing possible backlog once it acquires the jurisdiction to decide on constitutional complaints/appeal. These additional requirements also include general redefining of the current profile of the Macedonian constitutional judiciary. In this light, it could be necessary to amend some other Articles of the Macedonian Constitution. - Article 108 of the Macedonian Constitution prescribes: "The Constitutional Court of the Republic of Macedonia is a body of the Republic protecting constitutionality and legality." A new sentence (or part of the sentence) should be added in order to provide an explicit definition that it is also a body of the Republic that protects human rights and fundamental freedoms guaranteed in the Constitution. - Article 109 of the Macedonian Constitution prescribes: "The term of office of the judges is nine years without the right to re-election". A new sentence should be added in order to allow for the extension of the mandate of the judge until his or her successor takes office. Similarly, Article 111 of the Constitution prescribes: "The office of a judge of the Constitutional Court ceases when the incumbent resigns." Accordingly, a new sentence should be added to allow for the extension of the mandate of this judge until his or her successor takes office.29

27

ECHR, case of Srbić v. Croatia (dec.). See note 25.

28 Boštjan M. Zupančič, Constitutional Law and the Jurisprudence of the European Court of Human

Rights: An Attempt at a Synthesis, German Law Journal, Vol 2, No. 1 (2001), at http://www.germanlawjournal.com/index.php?pageID=11&artID =30 (accessed 26 August 2014).

29 On several occasions, the Venice Commission has already expressed that in case of inaction by the

nominating authority following the retirement of a judge, "the possibility should be provided for an extension of the term of office of a judge until the appointment of his/her successor" (highlighting added). In: CDL-STD(1997)020 - The composition of constitutional courts - Science and Technique of Democracy, no. 20 (1997). See also CDL-INF(2001)002 Opinion on the Constitutional Law on the Constitutional Court of the Republic of Croatia, § 17; - CDL-AD(2006)016 Opinion on possible constitutional and legislative improvements to ensure the uninterrupted functioning of the Constitutional Court of Ukraine, para. 21(b); - CDL-AD(2007)036 Opinion on Draft Amendments to the

16

- The powers of the Constitutional Court should be reduced by amending Article 110, indents 2 and 7 of the Constitution, which prescribe that the Macedonian Constitutional Court even decides on the conformity of collective agreements with the Constitution and laws, as well as the constitutionality of the programmes and statutes of associations of citizens. It is an unusually broad "abstract-control" jurisdiction of the Macedonian Constitutional Court.30 This jurisdiction should be removed before constitutional complaint is introduced. - Article 113 of the Macedonian Constitutional prescribes: "The working methods and the procedure before the Constitutional Court are regulated by an act of the Court." A new paragraph should be added in order to prescribe that all issues relevant to the competences of and proceedings before the Constitutional Court, as well as the legal effects of the Court's decisions and their execution, the status of judges of the Constitutional Court and other issues vital for the functioning of the Court have to be regulated by a special law (or even constitutional law).31 - The second new paragraph of Article 113 of the Macedonian Constitutional should be added in order to provide explicit grounds for establishing smaller decision-making bodies within the Constitutional Court (instead of adding a new paragraph to Article 113, it could be worth considering whether to introduce a new Article in order to provide these grounds).32 47. The text of item 1 of the 2014 Draft Constitutional Amendment XXXIX should be improved. - The part of item 1 of the 2014 Draft Constitutional Amendment XXXIX is worded "a state body" (државeн орган). It could lead to different interpretations of the scope of the Constitutional Court's jurisdiction to decide on constitutional complaint/appeal. Thus, the wording "state body" should be more specified in order to clarify that the system of constitutional complaint/appeal is to apply to decisions of national courts, including the Supreme Court as the highest Macedonian court.33 The specification is important because

Law on the Constitutional Court, the Civil Procedural Code and the Criminal Procedural Code of Azerbaijan, para. 16.; - CDL-AD(2008)029 Opinion on the Draft Laws amending and supplementing (1) the Law on Constitutional Proceedings and (2) the Law on the Constitutional Court of Kyrgyzstan, para. 12; - CDL-AD(2009)042 Opinion on Draft Amendments to the Law on the Constitutional Court of Latvia, para. 15; - CDLAD(2006)017 Opinion on amendments to the Law on the Constitutional Court of Armenia.

30 Cf. CDL-AD(2011)050corr Opinion on draft amendments and additions to the Law on the

Constitutional Court of Serbia, adopted by the Venice Commission at its 89th plenary session (Venice,

16-17 December 2011), Opinion No. 647/2011, Strasbourg, 29 October 2012, para. 11.

31 See, mutatis mutandis, ibid, para. 14.

32 Ibid, paras. 35-39, 52 and 54. This is all the more important given that Article 4, paragraph 1 of the

1992 Rules of Procedure of the Constitutional Court prescribes, "For the procedures of its competence, defined with the Constitution of the Republic of Macedonia, the Constitutional court decides on a meeting".

33 In CDL-AD(2011)050corr (see note 30), the Venice Commission reiterated that the competence of

the Constitutional Court to examine court decisions "is very positive from a human rights perspective" and that "the establishment of the possibility of a full constitutional complaint before the Constitutional Court is highly recommended from a human right’s perspective. If the Constitutional Court is not allowed to review judgments of the ordinary courts, there will be more applications to the European Court of Human Rights seeking human rights protection. States such as Turkey or Hungary, which have recently amended their systems of constitutional justice, tend to submit decisions of ordinary courts to the jurisdiction of the Constitutional Court. It is recommended that similar steps be taken by the Serbian legislator" (paras. 48-49 and notes 13 and 14).

17

the lack of the (Constitutional) Law on the Constitutional Court makes it very difficult to foresee all the relevant aspects of the 2014 Draft Constitutional Amendment XXXIX.34 - The words "or extraordinary" should be removed from the wording of item 1 of the Draft Constitutional Amendment XXXIX. Namely, according to the Strasbourg case law, extraordinary remedies usually do not have to be exhausted before applying to the ECtHR.35 Therefore, it seems that, if those words remain in the text, the Macedonian constitutional complaint/appeal could be declared right now as (a priori) ineffective domestic legal remedy. - Regarding the catalogue of rights and freedoms contained in item 1 of the 2014 Draft Constitutional Amendment XXXIX, the Macedonian Government did not substantiate the reasons why they had decided to use an enumerated power to list the rights and freedoms protected by the constitutional complaint/appeal instead of choosing a general clause approach. The Venice Commission has already determined in respect of Ukraine that "a full constitutional complaint to the Constitutional Court - against all cases of violation of human rights through individual acts – should be introduced".36 48. Taking into account its complexity, the Macedonian authorities should determine a certain period for the proper preparation of the introduction of constitutional complaint/appeal in the national legal order. The experience of the Constitutional Court of Turkey in this respect may serve as a guideline on how to introduce a constitutional complaint/appeal into the national legal order. In any case, the constitutional complaint/appeal should not be introduced before entering into the force of the (Constitutional) Law on the Constitutional Court, which would regulate all elements of the procedure related to it.

2. AMENDMENT XXXIX - PART TWO (Appeals against the decisions of the Judicial Council)

49. It is proposed that item 2 of the 2014 Draft Constitutional Amendment XXXIX is to be added as the new indent 8, and item 3 is to be added as the new indent 9 to Article 110 of the Macedonian Constitution. Accordingly, the revised text of Article 110 of the Macedonian Constitution, which includes the text of the 2014 Draft Constitutional Amendment XXXIX, is to prescribe as follows (text of the 2014 Draft Constitutional Amendment XXXIX is written in italics):

"Article 110 The Constitutional Court of the Republic of Macedonia (…)

34

Article 125 (i.e. Article 129 of the official consolidated text) of the Croatian Constitution also prescribes that the Constitutional Court decides on constitutional complaints against individual decisions of state bodies (državna tijela), but the Constitutional Act on the Constitutional Court has clarified that they include decisions of ordinary/trial courts.

35 For example, in the case Berdzenishvili against Russia ((dec.), application no. 31697/03, 29 January

2004), the ECtHR stated as follows: "The Court notes that it has jurisdiction in every case to assess in the light of the particular facts whether any given remedy appears to offer the possibility of effective and sufficient redress within the meaning of the generally recognised rules of international law concerning the exhaustion of domestic remedies and, if not, to exclude it from consideration in applying the six-month time-limit. The Court refers, further, to the extensive case-law to the effect that an application for retrial or similar extraordinary remedies cannot, as a general rule, be taken into account for the purpose of applying Article 35 of the Convention (see, for example, R. v. Denmark, no. 10326/83, Commission decision of 6 October 1983, DR 35, p. 218; Tumilovich v. Russia (dec.), no. 47033/99, 22 June 1999)."

36 CDL-AD(2013)034, para. 11. See note 7.

18

- decides on an appeal lodged against a decision of the Judicial Council of the Republic of Macedonia on the election, dismissal, or other disciplinary sanctions pronounced against a judge of a president of a court; - decides on an appeal lodged against a decision of the Council of Public Prosecutors on the election, dismissal, or other disciplinary sanction pronounced against a public prosecutor; - decides on other issues determined by the Constitution."

50. The Venice Commission has consistently argued that there should be the possibility of an appeal to an independent court against decisions of disciplinary bodies.37 If a national Constitution provides that the Constitutional Court is to decide on appeals against decisions of Judicial Council and Council of Public Prosecutors, then in these proceedings the Constitutional Court does not appear as constitutional, but rather as an appellate court. In other words, as the Venice Commission has already stated, "the Constitutional Court is the first and only court to examine the respective decisions of the judicial and prosecutorial councils. The Constitutional Court will therefore have to examine challenged facts more thoroughly than this may be necessary in constitutional complaint proceedings."38 51. Having regard to the foregoing, the appellate jurisdiction of the Constitutional Court has to be codified in a Law enacted by the Parliament, not in the Rules of Procedure adopted by the Constitutional Court itself. Consequently, the Venice Commission should strongly urge the Macedonian authorities to enact a special (Constitutional) Law on the Constitutional Court as soon as possible.39 As long as this Law is not enacted, it should not be recommended for items 2 and 3 of the 2014 Constitutional Amendment XXXIX to enter into force.

C. DRAFT AMENDMENT XXXIII (Definition of marriage and 'registered cohabitation' or any other form of registered life partnership)

52. The 2014 Draft Constitutional Amendment XXXIII introduces constitutional definition of marriage as a union solely between a woman and a man. It also introduces constitutional definition of "registered cohabitation" or any other form of registered life partnership as a union solely between a woman and a man. 53. It is proposed that along with item 1 of this Amendment a new paragraph 2, and along with item 2 of the Amendment a new paragraph 3 shall be added to Article 40 of the Macedonian Constitution. 54. Accordingly, the revised text of Article 40 of the Macedonian Constitution, which includes the text of the 2014 Amendment XXXIII, is to prescribe as follows (text of the 2014

37

CDL-AD(2010)004 Report on the Independence of the Judicial System Part I: The Independence of Judges, adopted by the Venice Commission at its 82

nd Plenary Session (Venice, 12-13 March 2010),

Study No. 494/2008, Strasbourg, 16 March 2010, paras. 43 and 82, item 6. See also CDL-AD(2013)034 (note 7).

38 CDL-AD(2011)050corr, para. 50. See note 30.

39 The Venice Commission also determined that term "disciplinary offence” has to be understood "as

meaning that each disciplinary ground has to be individually codified in Law in a way similar to a penal provision. The absence of a catalogue of such disciplinary offences would be unconstitutional under such a clause. No dismissal should be possible unless the conduct of a judge is covered by the definition of a disciplinary offence. The obligation to typify disciplinary offences on the level of the law also stems from the judgment Oleksandr Volkov v. Ukraine of the European Court of Human Rights" (judgment, 9 January 2013, application no. 21722/11, paras. 163, 181 and 185). See CDL-AD(2013)034, para. 55 (note 7).

19

Draft Constitutional Amendment XXXIII, as it is translated by the Macedonian Government, is written in italics):

"Article 40 The Republic provides particular care and protection for the family. Marriage shall be a life union solely of one woman and one man. A registered cohabitation, or any other registered form of life partnership, shall be a life union solely between one woman and one man. The legal relations in marriage, the family and common-law marriage are regulated by law. (…)"

55. However, the original text of the 2014 Draft Constitutional Amendment XXXIII, in Macedonian language, is worded as follows:

"Бракот е животna заедница исклучиво меѓу само една жена и само еден маж. Регистриранa вонбрачна заедница, или било кој друг регистриран oблик на животнo партнерствo, е животнa заедница исклучиво меѓу само една жена и само еден маж."

56. Respecting the original text, the term "cohabitation", as translated by the Macedonian authorities, one must understand rather as a "common-law marriage" (вонбрачната заедница). But it is not clear what does "registered common-law marriage" mean in comparison with a "common-law marriage" contained in the current § 2 of Article 40. Furthermore, reiteration of adjectives with the same meaning, presumably to enhance that two persons must be of different sex, as well as emphasising that the Macedonian legal system adheres to the principle of monogamy, is the main feature of the original text of the 2014 Draft Constitutional Amendment XXXIII. The spirit of the original text could be more authentically expressed as follows:

"Marriage shall be a life union solely between one woman only and one man only. Registered common-law marriage, or any other registered form of life partnership, shall be a life union solely between one woman only and one man only."

57. In the absence of established European standards on the matter and taking into account the case-law of the European Court of Human Rights (hereinafter: the ECtHR), the Venice Commission has already considered that the definition of marriage belongs to the state (here: Macedonian state) and its Parliament.40 Namely, according to the case law of the ECtHR, the definition of "marriage" as the union of a woman and a man falls within the margin of appreciation of the state authorities.41 58. A part of the 2014 Draft Constitutional Amendment XXXIII defining the marriage and common-law marriage as unions solely between a woman and a man will not change the

40

CDL-AD(2014)010 - Opinion of the Draft Law on the Revision of the Constitution of Romania, adopted by the Venice Commission at its 98

th Plenary Session (Venice, 21-22 March 2014), Opinion

731/2013, Strasbourg, 24 March 2014, para. 86.

41 See ECtHR, Schalk and Kopf against Austria, judgment, 22 November 2010, application no.

30141/04, para. 58; Gas and Dubois against France, judgment, 15 March 2012, application no. 25951/07, para. 66; X and others against Austria, judgment, 19 February 2013, application no. 19010/07, paras. 105-110; Vallianatos and Others against Greece, judgment [GC], 7 November 2013, nos. 29381/09 and 32684/09; Hämäläinen against Finland, judgment [GC], 16 July 2014, no. 37359/09.

20

existing Macedonian legal framework. Although this part of the 2014 Draft Constitutional Amendment XXXIII is in accordance with the ECtHR case law and European standards in general, it will make these definitions much more difficult to change in the future. 59. On the contrary, defining all other forms of registered life partnership as a union solely between a woman and a man could be the issue of great concern. Article 25 of the 1991 Macedonian Constitution prescribes "each citizen is guaranteed the respect and protection of the privacy of his/her personal and family life ..." This constitutional guarantee is fully comparable with the guarantee contained in Article 8 (Right to respect for private and family life) of the ECHR. Article 8 § 1 of the ECHR prescribes: "Everyone has the right to respect for his private and family life …" 60. As the Venice Commission has already stated in its Opinion CDL-AD(2013)012, defining in the Constitution the marriage as a union between a woman and a man "should not exclude other guarantees of family and family life. ... In the last decades, the European Court of Human Rights has gradually broadened the scope of Article 8 ECHR on the right to family life."42 61. There are substantial similarities between the Macedonian and Croatian legal systems stemming from the fact that the two states were part of the same former state (the former SFRY). Thus, I consider it necessary to expose the legal standpoints of the Croatian Constitutional Court concerning the justification of the constitutional definition of marriage as a union between a woman and a man. 62. Namely, the Croatian Constitutional Court has already dealt with the change of the Constitution concerning a definition of marriage. This change was based on a petition of the civil initiative "In the Name of the Family" (U ime obitelji) requesting a national referendum to amend the Constitution by including the definition of marriage as a living union between a woman and a man. A total of 683,948 voters' signatures were collected for the calling of the referendum, which is more than the necessary ten percent of the total number of voters in the Republic of Croatia. Based on the Decision of the Croatian Parliament to call a national referendum, a referendum was held on 1 December 2013. As the result of the referendum, in Article 62 of the Croatian Constitution a new paragraph has been added that reads: "Marriage is a living union between a woman and a man." However, the Constitutional Court has never examined whether the referendum question on the constitutional definition of marriage is in conformity with the Constitution or not. Namely, the Croatian Parliament rendered the Decision to call a national referendum with 104 parliamentary votes, that is, with more votes than it is necessary for the change of the Constitution itself (101) and at the same time adopted an explicit decision not to request the Constitutional Court to examine the constitutionality of the issue.43 63. Nevertheless, in order to preserve the fundamental values of the national constitutional order, the Croatian Constitutional Court repeatedly intervened ex officio during the referendum process through publicly posted warnings addressed to the Croatian

42

CDL-AD(2013)012 Opinion of the Fourth Amendment to the Fundamental Law of Hungary, adopted by the Venice Commission at its 95

th Plenary Session (Venice, 14-15 June 2013), Opinion 720/2013,

Strasbourg, 17 June 2013, para 20.

43 Article 95 of the Constitutional Act on the Constitutional Court prescribes: "At the request of the

Croatian Parliament, the Constitutional Court shall, in the case when ten percent of the total number of voters in the Republic of Croatia request calling a referendum, establish whether the question of the referendum is in accordance with the Constitution ...". See also Ruling of the Constitutional Court of the Republic of Croatia no. U-VIIR-164/2014 of 13 January 2014, Official Gazette no. 15/14., para. 11.

21

Parliament.44 In the Communication on the Citizens' Constitutional Referendum on the Definition of Marriage of 14 November 2013, the Croatian Constitutional Court stated:

"12. From the substantive law aspect, it is relevant that the Republic of Croatia legally recognises both marriage and common-law marriage, and same-sex unions,45 and that Croatian law is today aligned with the European legal standards regarding the institutions of marriage and family life. The Constitutional Court ... deems it necessary to point out the following: any supplementation of the Constitution by provisions according to which marriage is the living union of a woman and a man should not have any influence on the further development of the legal framework of the institution of common-law marriage and same-sex unions, in line with the constitutional requirements that everyone in the Republic of Croatia has the right to respect and legal protection of their personal and family life, and their human dignity."46

I believe that some parts of the 2013 Communication on the Citizens' Constitutional Referendum on the Definition of Marriage could be important for the forthcoming public debate on the 2014 Draft Constitutional Amendment XXXIII in Macedonia. Thus, the relevant excerpts from this act of the Croatian Constitutional Court are annexed to the Comments. 64. In the light of the foregoing, part of the provision of the 2014 Draft Constitutional Amendment XXXIII that prescribes ", or any other registered form of life partnership," should be deleted in the further steps of the amendment procedure of the Macedonian Constitution.

IV. Consideration of the 2014 Draft Amendments related to budgetary, financial and economic issues

B. DRAFT AMENDMENT XXXV (National Bank)

65. It is proposed that the 2014 Amendment XXXV is to replace Article 60 of the Macedonian Constitution, which prescribes:

"Article 60 The National Bank of the Republic of Macedonia is a currency-issuing bank. The National Bank is autonomous and responsible for the stability of the currency, monetary policy and for the general liquidity of payments in the Republic and abroad. The organization and work of the National Bank are regulated by law."

66. The text of the 2014 Draft Constitutional Amendment XXXV is worded as follows:

44

See the following Constitutional Court acts: - Warning on the occasion of the Draft decision on calling a national referendum adopted by the Committee on the Constitution, Standing Orders and Political System of the Croatian Parliament, 24 October 2013, Official Gazette no. 131/13; - Communication on the Citizens' Constitutional Referendum on the Definition of Marriage, No. SuS-1/2013, 14 November 2013, Official Gazette no. 138/13.

45 The Act on Same-sex Civil Unions (Zakon o istospolnim zajednicama) (Official Gazette no. 116/03)

was in force in Croatia from 30 July 2003 to 5 August 2014.

46 Accordingly, after the referendum, the Croatian Parliament enacted the new Act on Life Partnership

of the Same-sex Couples (Zakon o životnom partnerstvu osoba istog spola) (Official Gazette no. 92/14). The new Act provides legal protection for the same-sex couples that is almost identical to that of marriage. The only difference between "traditional" marriage and the "life partnership" is reflected in the fact that the same-sex couples do not have the right to adopt children.

22

"AMENDMENT XXXV 1. The Bank of the Republic of Macedonia is the central bank of the Republic of Macedonia. The basic objective of the Bank of the Republic of Macedonia shall be to achieve and maintain price stability. The Bank of the Republic of Macedonia shall be independent in achieving the objectives set. The Bank of the Republic of Macedonia is a legal entity with a functional, institutional, personnel and financial independence the organization and work of which shall be regulated by a special law."

67. The Macedonian Government explained that this Amendment "is aimed at intervening in the name of this institution in terms of renaming and redefining the basic objective that the Bank should accomplish in accordance with the international standards and practices. Comparative experiences show that the name of this institution and the objectives to be accomplished as defined in the Constitution are not appropriate, as a result of which there is a need to change the name into the Bank of the Republic of Macedonia, and price stability should be the basic objective of the Bank in conditions of market economy. Given the importance of the primary aims and objectives of the Bank of the Republic of Macedonia, it should be defined that the Bank of the Republic of Macedonia enjoys high level of independence in terms of political and other entities which is achieved by defining the four basic principles of independence that are elaborated in the special law. This formulation is in accordance with the Statute of the ESCB and the ECB, the Treaty on the Functioning of the European Union and the Treaty on the European Union."47 68. Renaming "the National Bank of the Republic of Macedonia" into "the Bank of the Republic of Macedonia" is not of a great importance for the Council of Europe. There is no the EU acquis/standard that this part of the Amendment XXXV is seeking to align with. However, the Macedonian Government did not explain why the current name of the Bank is "not appropriate". Many other countries also name their central banks as "national". For example, there are the Hungarian National Bank (Hungarian: Magyar Nemzeti Bank), the National Bank of Poland (Polish: Narodowy Bank Polski, NBP), the Danish National Bank (Danish: Danmarks Nationalbank), the Croatian National Bank (Hrvatska narodna banka), the National Bank of Serbia (Serbian: Народна банка Србије/Narodna banka Srbije), etc. The point of the question is that the term "national bank" has been used in the past synonymously with "central bank", but today, if a bank is named in this way, it is not automatically considered a central bank. So, the more important reason for amending the current Article 60 § 1 of the Macedonian Constitution seems to be the re-definition of the constitutional status of the Macedonian National Bank in order not to be any more defined as a "currency-issuing bank" (емисиона банка) but as a "central bank", whatever its name may be. 69. It seems that the provision of § 2 of the 2014 Draft Constitutional Amendment XXXV is the most problematic one. It prescribes "the basic objective of the Bank of the Republic of Macedonia shall be to achieve and maintain price stability" [Highlighted added]. However, the constitutional re-definition of the Bank as a "central bank" (§ 1) refers per definitionem to its basic goals and tasks. Therefore, it would be better to delete the current § 2 of the Draft Constitutional Amendment XXXV. It seems sufficient to slightly change the current § 4 (which should become § 3 in the Final Draft Amendment XXXV). For example, it could read as follows: "The status, tasks, objectives and capital ownership of the central bank, its powers, organisation and relations with the bodies of the Republic of Macedonia, banks and international institutions and organisations shall be regulated by a special law."

47

CDL-REF(2014)030, Reasoning of Amendment XXXV, p. 6. See note 1.

23

70. The Republic of Croatia accessed the European Union (EU) on 1 July 2013, as a 28th member. As a candidate country on its way to the European Union, Croatia changed its Constitution in June 2010 (Official Gazette no. 76/10). It could be worth noting that, during the negotiation process, Croatia also changed Article 53 of its Constitution regulating the Croatian National Bank, but mainly because it prescribed that the Croatian National Bank "shall be responsible to the Croatian Parliament".48 The Common Position from December 2008 clearly shows that the EU did not require the change of Article 53 of the Croatian Constitution for any other reason.49 71. The current Article 60 of the Macedonian Constitution does not contain such a disputable provision that was part of the Croatian Constitution. At the same time, it stipulates that the Macedonian National Bank is autonomous. Therefore, it seems that the reasons, which led to EU's requirement for "adaptation" of Article 53 of the Croatian Constitution, do not exist in the Macedonian case. However, if the Macedonian Government continues to insist that this provision is to be inserted in the Constitution, it is more to the competent European Commission services, rather than the Venice Commission, to assess whether the current Article 60 of the Macedonian Constitution should be amended or not. It also includes the substantial assessment of whether maintaining price stability could be a basic constitutional objective of the central bank of the EU Member State.

48

Explaining Article 8 of the 2010 Constitutional Amendments, the Croatian Government stated as follows: "In the scope of the Chapter 17 'Economic and monetary policy', the EU acquis requires a complete institutional, functional, personal and financial independence of the central banks of the Member States. This is especially provided for in Articles 130 and 131 of the Treaty on the Functioning of the European Union and Articles 7 and 14 of the Statute of the European System of Central Banks and the European Central Bank. Therefore, the EU requested from the Republic of Croatia, in the form of criteria for closing Chapter 17, to harmonize its legal framework to ensure the complete independence of the CNB in accordance with the requirements of the acquis and to facilitate integration of the CNB into the European System of Central Banks. In its Common Position from December 2008, the EU stressed the need for the Republic of Croatia to appropriately adapt, before accession and within the planned constitutional changes, an existing constitutional provision on the status and position of the Croatian National Bank. This primarily refers to the need of stressing the independence of the central bank, while at the same time deleting responsibility of the Croatian National Bank to the Croatian Parliament, in accordance with the acquis requirements. For this reason, it is proposed to change to Article 53 of the Constitution."

49 See Conference on Accession to the European Union - Croatia, European Union Common Position,

Chapter 17: Economic and monetary policy (AD 38/08, Brussels, 18 December 2008). The Chapter "Monetary policy" stated as follows: "As regards the independence of the Croatian National Bank (CNB), the EU notes with satisfaction that the CNB Law was amended in July 2008, resolving all outstanding issues affecting central bank independence. The EU notes that the CNB statute has also been amended to make it fully compatible with the CNB's independence. Moreover, the new CNB Law clearly states that those provisions of the General Administrative Procedures Law that were considered as incompatible with the CNB's independence do not apply to the decisions taken by the CNB. The EU underlines the need for Croatia to address prior to accession, within the envisaged Constitutional reform, the current wording of the Constitution (Article 53) and to adjust it accordingly. The EU welcomes the strengthening of the financial independence of the CNB and the ensuring of compliance with the prohibition of monetary financing of the public sector in accordance with Article 101 of the EC Treaty, and the elimination of the provisions on a possible coverage of a shortfall between income and expenditures of the CNB by public debt securities. As regards the integration of the Croatian National Bank into the ESCB, the EU notes that the new CNB Law brings the integration-related provisions fully into line with the acquis, which will enter into force as from the date of the introduction of the euro in Croatia. In view of the above considerations, the EU considers that Croatia has met the requirements of the closing benchmark as set out in the EU common position (CONF-HR 15/06)", p. 3, at http://euinfo.pravo.hr/userfiles/file/ad00038_en08.pdf (accession: 1 September 2014).

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C. DRAFT AMENDMENT XXXVI (The State Audit Office)

72. It is proposed that the Amendment XXXVI is to be added to the Chapter II ("II. BASIC FREEDOMS AND RIGHTS OF THE INDIVIDUAL AND CITIZEN"), Section 4 ("Foundations for Economic Relations") of the Macedonian Constitution. However, this Amendment clearly fails to determine the place in the Constitution in which it is to be inserted. 73. The text of the Amendment XXXVI is worded as follows:

"AMENDMENT XXXVI 1. The State Audit Office shall be an autonomous and independent body auditing public funds. The Assembly of the Republic of Macedonia shall elect and dismiss the principal state auditor. The conditions and manner of performance of state audit, the competences, organisation and work of the State Audit Office shall be regulated by law."

74. In its "The former Yugoslav Republic of Macedonia 2013 Progress Report", the European Commission concluded as follows:

"4.32. Chapter 32: Financial control (…) In the area of external audit, the State Audit Office (SAO) completed 54 audits in 2012 compared to 77 audits in 2011. The SAO carries out all types of audits, and financial audits result in a professional audit opinion. Performance audit is being gradually developed. The SAO has increased cooperation with parliament by signing a memorandum for appropriate follow-up of the audit reports and by preparing a manual of procedures for parliament on reviews of reports. Currently, parliament systematically discusses and approves only the annual SAO report, but there is no formal review mechanism for individual audit reports. The SAO’s independence still needs to be safeguarded constitutionally. … Conclusion There has been little progress in the area of financial control. … Substantial efforts are also needed to safeguard the State Audit Office’s independence in the Constitution and to ensure administrative capacity for the protection of the EU’s financial interests. Overall, preparations in this area are at an early stage." [Highlighted added]50

75. In 2010, Croatia also added in its Constitution a new Article 35a regulating the State Audit Office as "the supreme audit institution of the Republic of Croatia" which is to be "autonomous and independent in its work". Explaining Article 9 of the 2010 Constitutional Amendments, the Croatian Government stated as follows: "This article introduces a new Article 53a of the Constitution and regulating the issue of the independent status of the State Audit Office (SAO) as the Croatian supreme audit institution. Independent position of the SAO is currently regulated only in the State Audit Act. As an additional guarantee of the

50

The former Yugoslav Republic of Macedonia 2013 Progress Report, p. 58, at http://ec.europa.eu/enlargement/pdf/key_documents/2013/package/brochures/the_former_yugoslav_republic_of_macedonia_2013.pdf (accessed 28 August 2014). See also European Commission COM(2013) 700 final - Communication from the Commission to the European Parliament and the Council. Enlargement Strategy and Main Challenges 2013-2014 {SWD(2013) 411 final} {SWD(2013) 412 final} {SWD(2013) 413 final} {SWD(2013) 414 final} {SWD(2013) 415 final} {SWD(2013) 416 final} {SWD(2013) 417 final} {SWD(2013) 418 final}, Brussels, 16 October 2013, at http://ec.europa.eu/enlargement/pdf/key_documents/2013/package/strategy_paper_2013_en.pdf (accessed 28 August 2014).

25

independent status of the SAO, in accordance with the recommendations of the International Organization of Supreme Audit Institutions (INTOSAI), and in particular the recommendations of the Lima and the Prague Declarations, the EU requested - in the form of the criteria for closing Chapter 32 - that this Amendment to the Constitution expressly provides and preserves the independence of the State Audit Office."51 76. Having regard to the abovementioned EU requirement, I think that the Venice Commission could support the 2014 Draft Constitutional Amendment XXXVI, although it could be fully justified to ask whether it is necessary, at this very moment, to add to the Constitution just one among many issues relevant for the accession of Macedonia to the EU.52 As to the proposed text of the 2014 Draft Constitutional Amendment XXXVI, the Venice Commission should recommend as follows: - At the end of § 2 of the 2014 Draft Constitutional Amendment XXXVI it should be added "in accordance with the law", so that the provision shall prescribe: "The Assembly of the Republic of Macedonia shall elect and dismiss the principal state auditor in accordance with the law." - It would be worth considering whether it is necessary to add a new sentence in § 2 of the 2014 Draft Constitutional Amendment XXXVI (or to add a new § 3) which shall prescribe the majority of votes required for the election of the principal state auditor.

A. DRAFT AMENDMENT XXXIV (International Financial Zone)

77. It is proposed that the Draft Amendment XXXIV is to be added to the Chapter II ("II. BASIC FREEDOMS AND RIGHTS OF THE INDIVIDUAL AND CITIZEN"), Section 4 ("Foundations for Economic Relations") of the Macedonian Constitution. However, this Amendment does not clearly determine the place in the Constitution in which it is to be inserted.

78. The text of the 2014 Draft Constitutional Amendment XXXIV is worded as follows:

"AMENDMENT XXXIV 1. An international financial zone shall be established by law on the territory of the Republic of Macedonia. The establishment and the organization of the zone, the rights and obligations of the bodies managing the zone and the special judicial and regulatory authorities, and the resolution of disputes within the zone shall be governed by a special act of the zone.

51

The Proposition to Change the Constitution of the Republic of Croatia, The Committee on the Constitution, Standing Orders and Political System of the Croatian Parliament, class 012-02/10 to 01/01, reg. 6521-1-10-06, Zagreb, 15 June 2010, at http://www.sabor.hr (accessed 28 August 2014).

52 Namely, in the foreseeable future Macedonia will have to systematically change its Constitution in

order to introduce a number of constitutional novelties as necessary and required for the completion of negotiations for accession and realization of its membership in the EU. For example, the Croatian 2010 Constitutional Amendments included the insertion into the Constitution of a new Head VIII on the European Union (a so-called "the Europe Chapter"). It embraces a number of constitutional novelties, including provisions dealing with the legal basis for a membership and the transfer of constitutional powers, the organization of the participation in EU institutions, the implementation of EU law in Croatia, the active and passive voting rights of EU citizens residing in Croatia and the EU citizenship rights. It also includes some other separate additions to the Constitution (for example, on the European Arrest Warrant (EAW), the Croatian National Bank, the State Audit Office, etc.). The Croatian Government described them as "the constitutional questions arising from the chapters of the

acquis/negotiating chapters with the European Union".

26

A special legal regulation shall be applied to the zone, except the regulations from the field of criminal law of the Republic of Macedonia. The zone shall adopt acts governing the prevention of money laundering terrorism financing and supervision under the applicable standards of the United Nations Organisation. Tax, commercial-business and civil laws of the Republic of Macedonia shall not be applied in the zone. The regulation in these legal areas shall be adopted by acts of the zone, in accordance with the highest international standards."

79. The Macedonian Government explained, "the proposed amendments to the Constitution of the Republic of Macedonia envisage the creation a constitutional possibility for the establishment of an international financial zone, which would be developing separate legal and financial regulations based on the highest international standards. The establishment of the financial zone will encourage the development of financial services in the Republic of Macedonia by creating conditions to attract international financial trade companies." 80. As it has already been mentioned in para. 4 of these Comments, questions related to budgetary, financial and economic issues are mainly outside the scope of these comments. They are also to be commented on separately by the relevant European Commission services. Accordingly, from the strict legal point of view, regarding it as a question of principle, I could not support the 2014 Draft Constitutional Amendment XXXIV. Its wording is too vague, ambiguous and unpredictable, and its effects are too uncertain to be in accordance with the rule of law.

D. DRAFT AMENDMENT XXXVII (Limit of the budget deficit and of public debt)

81. It is proposed that item 1 of the Amendment XXXVII is to be added as a new paragraph 2 of Article 91 of the Macedonian Constitution, which defines the compentences of the Macedonian Government, listing them in the 13 indents. Item 2 of the Amendment XXXVII is a transitional provision which prescribes "the established fiscal rules shall commence to be implemented as of 1 January 2017". 82. The text of the item 1 of the Amendment XXXVII is worded as follows:

"AMENDMENT XXXVII 1. The Government of the Republic of Macedonia shall define the fiscal policy in the Republic of Macedonia within the frameworks of the established fiscal rules, as follows: - The Budget deficit of the Republic of Macedonia may not exceed 3% of the gross domestic product; - The public debt may not exceed 60% of the gross domestic product. The Government of the Republic of Macedonia may, in exceptional situations only, deviate from the established fiscal rules, which is in case of natural disasters and external shocks affecting the jeopardization of national security, public health or in case of a significant decline in real gross domestic product. The occurrence of exceptional situations shall be determined by the Assembly of the Republic of Macedonia by a two-third majority vote. The Government of the Republic of Macedonia shall be obliged to submit a report to the Assembly of the Republic of Macedonia on the deviations in the exceptional situations, clearly specifying: - the reasons for the deviation from the fiscal rules; - the measures is [it - corr. J.O.] will take in order to re-establish the fiscal

rules; and

27

- a time period within which fiscal policy will be implemented again within the

frameworks of the established fiscal rules." 83. The Macedonian Government substantiated that this Amendment follows "the example of the European countries", but failed to give a single example. It emphasized that "[t]he main task and challenge of responsible and modern Governments is to ensure fiscal sustainability, that is, the efficient management of public finances, establishment of stable fiscal position in the long term without jeopardising the solvency in view of the undertaken obligations and the payment of expenditures". So, "[t]he definition of fiscal rules is the foundation of fiscal responsibility, transparency and earmarked utilisation of budget funds". 84. Similar to the 2014 Draft Amendment XXXVI, questions related to the limit of the budget deficit and of public debt belong to budgetary, financial and economic issues, which are mainly outside the scope of these comments. It is expected that the relevant European Commission services are to provide comments to this Draft Amendment as well. However, from the strict legal point of view, it seems necessary to mention that a transitional provision prescribing: "The established fiscal rules shall commence to be implemented as of 1 January 2017" could not make a part of the Constitution itself. In this connection, it must be recalled that Article 133 of the 1992 Macedonian Constitution prescribes: "A Constitutional Act shall be adopted for the implementation of the Constitution."

V. Conclusions

85. Below are listed only the conclusions relating to the first set of questions (the Judiciary and human rights issues). 1) As to the 2014 Draft Constitutional Amendment XXXVIII (The new composition of the Judicial Council): - There is no need for the new judicial component of the Judicial Council as proposed in the 2014 Draft Constitutional Amendment XXXVIII (see para. 24-30 of these Comments). - The rules on the parliamentary majority required for the elections of members of the Judicial Council should be clarified to provide the same qualified majority for the election of all five candidates (see para. 31-33 of these Comments). 2) As to item 1 of the 2014 Draft Constitutional Amendment XXXIX (The constitutional complaint/appeal): - Some additional requirements should be fulfilled before the Venice Commission can give a positive assessment of the constitutional framework as the legal basis for introducing a constitutional complaint/appeal in the Macedonian legal order. Namely, there is a need to amend or supplement several other provisions in Articles 108, 109, 110 and 113 of the Macedonian Constitution relating to the Constitutional Court (see para. 46 of these Comments). - The text of item 1 of the 2014 Draft Constitutional Amendment XXXIX should be clarified and amended in some parts (see para. 47 of these Comments). - The time is needed for preparing the introduction of a constitutional complaint/appeal as new constitutional remedy in the Macedonian legal system. As a minimum requirement, it should not be implemented before the enactment of the (Constitutional) Law on the Constitutional Court (see para. 48 of these Comments).

28

3) As to the 2014 Draft Constitutional Amendment XXXIX (Appeals against the decisions of the Judicial Council): The appellate jurisdiction of the Constitutional Court, including all other provisions relevant to the proceedings on appeals against decisions of the Judicial Council, has to be codified in the special (Constitutional) Law on the Constitutional Court. As long as this Law is not enacted, the Venice Commission should not recommend the entry into force of items 2 and 3 of the 2014 Draft Constitutional Amendment XXXIX (see paras. 49-51 of these Comments). 4) As to the 2014 Draft Constitutional Amendment XXXIII (The constitutional definition of marriage, common-law marriage and other forms of registered life partnership): - The constitutional definition of marriage as a union solely between a woman and a man is, in principle, in accordance with the European legal standards. Such definition is acceptable as long as it does not interfere with the right of individual to respect her/his private and family life in the meaning of Article 8 of the ECHR (which is comparable to Article 25 of the Macedonian Constitution) and relevant case law of the ECtHR. - Consequently, the part of the 2014 Draft Constitutional Amendment XXXIII relating to "other forms of registered life partnership" seems to be contrary to Article 25 of the Macedonian Constitution, Article 8 § 1 of the ECHR and the relevant case-law of the ECtHR. It should be deleted in the further steps of the amendment procedure of the Macedonian Constitution (see paras. 52-64 of these Comments). 86. The comments relating to budgetary, financial and economic issues are mainly contented in: - Paras. 68 and 69 (National Bank) - Para. 76 (The State Audit Office) - Para. 80 (International Financial Zone) - Para. 84 (Limit of the budget deficit and of public debt).

29

APPENDIX CONCERNING THE CONSTITUTIONAL DEFINITION OF MARRIAGE

Excerpts from the Croatian Constitutional Court Communication on the Citizens' Constitutional Referendum on the Definition of Marriage

No. SuS-1/2013, 14 November 2013, Official Gazette no. 138/13

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF CROATIA

No. SuS-1/2013

Zagreb, 14 November 2013

The Constitutional Court of the Republic of Croatia at a session held on 14

November 2013, unanimously adopted the following

COMMUNICATION ON THE CITIZENS' CONSTITUTIONAL REFERENDUM

ON THE DEFINITION OF MARRIAGE

I.

1. At its session held on 8 November 2013, the Croatian Parliament adopted the

Decision to call a national referendum, class: 014-01/13-01/03, which was published in

the Official Gazette no. 134 of 9 November 2013, and came into force on the day it was

adopted (hereinafter: OdRef/2013).

OdRef/2013 was based on the request by the civil initiative "In the Name of the Family"

(U ime obitelji) requesting the calling of a national referendum to amend the Constitution

of the Republic of Croatia (Official Gazette nos. 56/90, 135/97, 113/00, 28/01 and

76/10) whereby the definition of marriage as a living union between a woman and a man

would be introduced into the Constitution. The national referendum was requested by

683,948 voters, that is more than 10 percent of the total number of voters in the

Republic of Croatia, and in OdRef/2013 it was determined that the referendum would be

held on 1 December 2013 (hereinafter: referendum on the definition of marriage).

2. The institution of a national referendum, including those called by the Croatian

Parliament on the basis of a citizens' constitutional initiative, that is, when it is requested

by ten percent of the total number of voters in the Republic of Croatia (hereinafter:

citizens' constitutional referendum) is subject to a review of conformity with the

Constitution. The mechanism by which the constitutional order is initially protected from

citizens' constitutional initiatives that do not conform with the Constitution is prescribed

in Article 95 of the Constitutional Act on the Constitutional Court of the Republic of

Croatia (Official Gazette nos. 99/99, 29/02 and 49/02 - consolidated text, hereinafter:

the Constitutional Act), which reads:

"Article 95

30

(1) At the request of the Croatian Parliament, the Constitutional Court

shall, in the case when ten percent of the total number of voters in the Republic of

Croatia request calling a referendum, establish whether the question of the

referendum is in accordance with the Constitution and whether the requirements

in Article 86" (actually 87 - note by the Constitutional Court) "paragraphs 1-3 of

the Constitution of the Republic of Croatia for calling a referendum have been

met.

(2) The Constitutional Court shall pass the decision in paragraph 1 of this

Article within a term of 30 days after it filed the request."

Pursuant to these provisions, the Constitutional Act indicates that there are questions

about which it is prohibited to hold a referendum by force of the Constitution. The

Constitutional Court establishes these in each specific case.

(…)

4. In the case of the referendum on the definition of marriage, before the adoption of

OdRef/2013, voting was conducted and a decision rendered in the Croatian Parliament to

dismiss the proposal for the Croatian Parliament to act on Article 95 of the Constitutional

Act and file a request with the Constitutional Court on those two questions.

By rendering a decision to dismiss the proposal for the Croatian Parliament to act on

Article 95 of the Constitutional Act, and then by adopting OdRef/2013, the Croatian

Parliament expressed its legal will that it deemed the content of the referendum question

on the definition of marriage to be in conformity with the Constitution and confirmed that

the constitutional requirements had been met to call a referendum on that question.

II.

5. Pursuant to Article 125.9 of the Constitution and Article 2.1 in conjunction with

Article 87.2 of the Constitutional Act, the Constitutional Court has the general

constitutional task to guarantee respect of the Constitution …

In that light, it is necessary to reply to several questions regarding the citizens'

constitutional referendum on the definition of marriage.

III.

6. Today, in all relevant international documents on human rights, it is still generally

accepted that marriage and family life are not synonymous and are not identical legal

institutions. It is sufficient to recall two documents on human rights which are legally

binding and directly applicable for the Republic of Croatia.

6.1. Article 12 of the Convention for the Protection of Human Rights and Fundamental

Freedoms (Official Gazette - International Agreements no. 18/97, 6/99 - consolidated

text 8/99 - correction 14/02, and 1/06, hereinafter: the Convention) which came into

force on 3 September 1953, reads:

"Article 12

Right to marry

Men and women of marriageable age have the right to marry and to found

a family, according to the national laws governing the exercise of this right."

Article 9 of the Charter of Fundamental Rights of the European Union (Official Journal of

the European Union, C 83/389 of 30 March 2010, hereinafter: the EU Charter) which

came into force on 1 December 2009, reads:

31

"Article 9

Right to marry and right to found a family

The right to marry and the right to found a family shall be guaranteed in

accordance with the national laws governing the exercise of these rights."

In the Explanation to the Charter of Fundamental Rights 2007/C 303/02 (Official Journal

of the European Union of 14 December 2007), this Article is explained as follows:

"Explanation of Article 9 Right to marry and right to found a family

This Article is based on Article 12 of the ECHR ... The wording of the Article

has been modernised to cover cases in which national legislation recognises

arrangements other than marriage for founding a family. This Article neither

prohibits nor imposes the granting of the status of marriage to unions between

people of the same sex. This right is thus similar to that afforded by the ECHR,

but its scope may be wider when national legislation so provides."

6.2. A review of national legislations in the Council of Europe member states regarding

the recognition of the conclusion of marriage by persons of the same sex, or

"arrangements other than marriage" and a review of relevant European documents on

that issue, is contained in the case of the European Court of Human Rights in Strasbourg

(hereinafter: ECtHR) Vallianatos and others v. Greece (Grand Chamber judgment of 7

November 2013, application nos. 29381/09 and 32684/097, paras. 25. - 34).

6.3. Regarding the objection of discrimination of same-sex partners due to the

impossibility in law of concluding a marriage, the relevant standpoints of the ECtHR are

expressed in the case Schalk and Kopf v. Austria (judgment, 24 June 2010, application

no. 30141/04).

In that case, a homosexual couple was denied the right to be married pursuant to

Austrian law. In January 2010, Austria made it possible for same-sex couples to conclude

a registered partnership, but did not permit them to be married.

The applicants referred to Article 12 (the right to be married) and Article 14 (the

prohibition of discrimination) taken in conjunction with Article 8 (the right of respect to a

private and family life) of the Convention. They requested the ECtHR to interpret the text

of Article 12 of the Convention in the light of present day conditions, which is the usual

method of interpretation which that court uses to give new or wider meaning to the

provisions of the Convention (para. 50 of the judgment). The relevant part of the

judgment reads:

"100. The applicants argued that they were discriminated against as a

same-sex couple, firstly, in that they still did not have access to marriage and,

secondly, in that no alternative means of legal recognition were available to them

until the entry into force of the Registered Partnership Act.

101. Insofar as the applicants appear to contend that, if not included in

Article 12, the right to marry might be derived from Article 14 taken in

conjunction with Article 8, the Court is unable to share their view. It reiterates

that the Convention is to be read as a whole and its Articles should therefore be

construed in harmony with one another (...). Having regard to the conclusion

reached above, namely that Article 12 does not impose an obligation on

Contracting States to grant same-sex couples access to marriage, Article 14 taken

in conjunction with Article 8, a provision of more general purpose and scope,

cannot be interpreted as imposing such an obligation either.

(…)

108. ... the applicants appear to argue that if a State chooses to provide

same-sex couples with an alternative means of recognition, it is obliged to confer

a status on them which – though carrying a different name – corresponds to

32

marriage in each and every respect. The Court is not convinced by that argument.

It considers on the contrary that States enjoy a certain margin of appreciation as

regards the exact status conferred by alternative means of recognition."

In the judgment in Schalk and Kopf v. Austria (2010) the ECtHR accepted that some

contracting states had extended marriage to same-sex partners, but it pointed out that

this reflected their own image of the role of marriage in their societies, and this does not

stem from an interpretation of fundamental rights, as prescribed by the contracting

states to the Convention of 1950. Further, it noted that today there is still no "European

consensus" concerning same-sex marriage (para. 58 of the judgment).

The ECtHR also considered the EU Charter, establishing that Article 9 leaves the decision

on same-sex marriages to the member states and does not oblige them in this regard.

On these grounds, the ECtHR partially modified its previous, firm stance on the

traditional definition of marriage as a union between a woman and a man. The relevant

part of the judgment reads:

"61. Regard being had to Article 9 of the Charter, therefore, the Court

would no longer consider that the right to marry enshrined in Article 12 must in all

circumstances be limited to marriage between two persons of the opposite sex.

Consequently, it cannot be said that Article 12 is inapplicable to the applicants'

complaint.

However, as matters stand, the question whether or not to allow same-sex

marriage is left to regulation by the national law of the Contracting State.

62. In that connection, the Court observes that marriage has deep-rooted

social and cultural connotations which may differ largely from one society to

another. The Court reiterates that it must not rush to substitute its own judgment

in place of that of the national authorities, who are best placed to assess and

respond to the needs of society ...

63. In conclusion, the Court finds that Article 12 of the Convention does

not impose an obligation on the respondent Government to grant a same-sex

couple like the applicants access to marriage."

In the judgment Schalk and Kopf v. Austria (2010), the ECtHR took one more important

step. It recognised for the first time that stable cohabiting relationships of same-sex

couples come under the term "family life" within the meaning of Article 8 of the

Convention. This opened the possibility for it to be established by a court judgment that

same-sex couples are discriminated against because of their gender in their right to

respect for their personal and family life (Article 14 in conjunction with Article 8 of the

Convention).

"93. The Court notes that since 2001, when the decision in Mata Estevez

was given, a rapid evolution of social attitudes towards same-sex couples has

taken place in many member States. Since then a considerable number of

member States have afforded legal recognition to same-sex couples ... Certain

provisions of EU law also reflect a growing tendency to include same-sex couples

in the notion of 'family'. ...

94. In view of this evolution the Court considers it artificial to maintain the

view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy

'family life' for the purposes of Article 8. Consequently the relationship of the

applicants, a cohabiting same-sex couple living in a stable de facto partnership,

falls within the notion of 'family life', just as the relationship of a different-sex

couple in the same situation would."

IV.

(…)

33

7.1. ... Member states of the Council of Europe can currently be divided into three groups

in this regard: - first, the smallest (9 states): those who understand marriage as a union

of two persons regardless of gender, whereby the legal effects of the marriage of persons

of the same sex are not equalised in all states with the legal effects of the marriage of

people of different sexes (for example, in Portugal the right to adopt children is not

recognised for a same-sex married couple; second (18 states), those which understand

marriage as a union of two persons of different genders, and for same-sex couples they

prescribe various alternative forms of recognition; third (20 states): those which

understand marriage as the union of two persons of different genders and do not legally

recognise any form of union of same-sex couples.

Croatian belongs to the second group of European countries, that is, those which give

legal recognition to marriage as the union of two persons of different genders, and an

alternative way of recognising same-sex couples (same-sex civil union).

7.2. In conclusion, in the Republic of Croatia sexual and gender diversity are protected

by the Constitution. The rights of all persons are also protected, regardless of gender and

sex, to respect and legal protection of their personal and family life and their human

dignity (Article 35 of the Constitution). These legal facts are today considered to be the

permanent values of the Croatian constitutional state.

Accordingly, regarding the referendum on the definition of marriage, the Constitutional

Court emphasises that this is not a referendum on the right to respect for family life. The

right to respect for family life is guaranteed by the Constitution for all persons, regardless

of gender and sex, and is under the direct protection of the Constitutional Court and the

ECtHR.

V.

(…)

9.1. The Constitutional Court could not accept as a rule that … already existing

legislation would be transformed into constitutional law, whereby a provision, which

belongs to the corpus of legislation, is introduced into the Constitution.

The Constitutional Court recalls the standpoint of the Venice Commission, the advisory

body of the Council of Europe for constitutional matters, of the unacceptable systematic

"constitutionalisation" of legislation in a democratic society, in view of the fact that this

undermines the democratic principle of "checks and balances" and the principle of

separation of powers. For example, on the occasion of the amendments to the Hungarian

Fundamental Law of March 2013, whereby some legislation was "constitutionalised", the

Venice Commission in its Opinion of the Fourth Amendment to the Fundamental Law of

Hungary of 17 June 2013 (Opinion of the Fourth Amendment to the Fundamental Law of

Hungary, adopted by the Venice Commission at its 95th Plenary Session (Venice, 14-15

June 2013), Opinion 720/2013, CDL-AD(2013)012, Strasbourg, 17 June 2013), pointed

out:

"76. ... even Parliament has to respect the supremacy of the Constitution

and it can be controlled by other organs, especially by the Constitutional Court.

Constitutional justice is a key component of checks and balances in a

constitutional democracy.

86. According to European standards, in particular the Statute of the

Council of Europe, Hungary is obliged to uphold democracy, the protection of

human rights and the rule of law. The sovereignty of the Hungarian Parliament is

therefore limited in international law.

34

87. The Venice Commission is concerned that the approach of shielding

ordinary law from constitutional review is a systematic one. This results in a

serious and worrisome undermining of the role of the Constitutional Court as the

protector of the Constitution. This is a problem both from the point of view of the

rule of law, but even more so from the point of view of the principle of democracy.

Checks and balances are an essential part of any democracy. The reduction (...)

and, in some cases, complete removal (‘constitutionalised’ matters) of the

competence of the Constitutional Court to control ordinary legislation according to

the standards of the Fundamental Law results in an infringement of democratic

checks and balances and the separation of powers.

(…)

137. ... Constitutional and ordinary politics need to be clearly separated

because the constitution is not part of the ‘political game’, but sets the rules for

this game. Therefore, a constitution should set neutral and generally accepted

rules for the political process. For its adoption and amendment, a wide consensus

needs to be sought."

These standpoints are general in nature and relate to all amendments to the constitution,

regardless of whether they are undertaken by parliament or by a citizens' constitutional

referendum.

The Constitutional Court in this sense points out that the incorporation of legal matters

into the Constitution must not become a systematic occurrence, and exceptional

individual cases must be justified by being linked, for example, with deeply rooted social

and cultural characteristics of society, as the ECtHR stated for the institution of marriage

in para. 62 of the judgment in Schalk and Kopf v. Austria (2010) (See point 6.3 of this

Communication).

(…)

VII.

11. The Constitutional Court concludes that the holding of a referendum on the

definition of marriage has revealed many problems in the Croatian referendum legislation

and opened a series of legal questions that require answers.

(…)

12. From the substantive law aspect, it is relevant that the Republic of Croatia legally

recognises both marriage and common-law marriage, and same-sex unions, and that

Croatian law is today aligned with the European legal standards regarding the institutions

of marriage and family life.

The Constitutional Court finally deems it necessary to point out the following: any

supplementation of the Constitution by provisions according to which marriage is the

living union of a woman and a man should not have any influence on the further

development of the legal framework of the institution of common-law marriage and

same-sex unions, in line with the constitutional requirements that everyone in the

Republic of Croatia has the right to respect and legal protection of their personal and

family life, and their human dignity.

13. This Communication shall be published in the Official Gazette.

PRESIDENT

Professor Jasna Omejec, LLD, m. p.