Author: Margarita Tsatsa Nikolovska
Vice-president of the Constitutional court of Bosnia and
Hercegovina, former judge in the European Court of Human
Rights, president of the Institute for Human Rights
Compliance with fundamental rights and providing solid framework for rule of law has been a difficult task for almost all democratic states, but the most difficult is for less-developed countries and countries which have fragile democracies and can be much affected by unexpected developments caused in the system for protection of human rights and divergences from the well-established norms of rule of law. North Macedonia is not an exclusion in these possible situations. Many of the elements used to describe what constitutes the rule of law equate to the basic elements of democracy. Democracy is defined as the natural context for human rights to be respected and duly enjoyed; the defining elements of democracy provide criteria for the permissible limitations to certain human rights and even the necessity of derogation from certain rights during states of emergency as it was a case with the current pandemic caused by the coronavirus. In explaining the relationship between human rights and the rule of law, it is evident that they are mutually dependent. We cannot function in a system without established rule of law, but also this system cannot properly exist without the necessity in exercising the fundamental rights and freedoms.
Through the past decades, the Republic of North Macedonia was faced with difficult situations, starting with the dissolution from ex-Yugoslavia, overcoming the situation described in the 2016 EU progress report as ‘captured state’ and making efforts to achieve the criteria for becoming a Member State of the European Union. All this transitional period caused divergences in the Macedonian system of parliamentary democracy, thus divergences in the branches of power which subsequently had a great impact on the fundamental rights and the rule of law.
The aspirations of becoming part of the European Union family, means that beside many criteria which must be satisfied, the need for protection of fundamental rights and the rule of law are of utmost importance.1 In the 2019 Report of the European Commission regarding the Republic of North Macedonia, it was noted that the government has taken steps to restore checks and balances, to strengthen democracy and the rule of law. The country has continued to undergo fundamental changes in an inclusive and open political atmosphere and has continued to deliver tangible results in key areas identified in the Council Conclusions such as the judiciary, fight against corruption and organised crime, intelligence services reform and public administration.2 The legal framework for the protection of fundamental rights is largely in line with European standards and the country has made good progress. It also adopted an ambitious de-institutionalisation strategy and it transcribed its objectives to fight violence against women into an action plan for implementing the Istanbul Convention. However, what has been noticed by the European Commission and previously by the Senior Experts’ Group on systemic Rule of Law issues is the fact that there is a considerable gap in implementation of the laws in practice. Without proper implementation of the laws we cannot have effective protection of the guaranteed human rights nor established system of rule of law.
In the latest report concerning the Republic of North Macedonia, the European Commission emphasized that ‘In light of the significant progress achieved and the conditions set unanimously by the Council in June 2018 having been met’, the Commission recommended in May 2019 to open accession negotiations with the country due to the fact that delivered tangible results in its continued implementation of EU-related reforms and on good neighbourly relations. Regarding the protection of fundamental rights, the European Commission recognise that the legal framework is largely in line with European standards. Additional efforts are needed to address recommendations of European and international human rights bodies, particularly regarding the treatment of detained and convicted persons.3
The newly established situation caused by the Covid-19 pandemic produced disturbances in the well-established system of separation of powers and activation of Article 15 from the European Convention on Human Rights for derogations from the guaranteed human rights.4 Following the examples from other countries in Europe and the Western Balkans, the president of the Republic has declared state of emergency on 18 March 2020 which meant that there would be concentration of the power into the executive. The emergency powers gave the Government right to deliver decrees with a force of law for issues related to the health crisis and to bring restrictions in forms of quarantine and implications in the freedoms of movement especially for the elderly, as well as limitations in exercising the freedoms of expression, in particular with combating disinformation, and right to assembly. Those rights which are not inviolable and are subject to certain restrictions are especially important for the proper functioning of the rule of law.
We were faced with unique situation were the Assembly was dissolved due to parliamentary elections, in absence of functional Parliament, the President of the Republic declared state of emergency three times and the whole power was concentrated with the Government which had the right to deliver decrees with a force of law. Almost three months after the election of new members of the Parliament, the legal requirement for the Parliament to confirm the states of emergency were not honoured by the Parliament due to failure to obtain 2/3 majority. The question which raises is if this postponement will have impact in the system of protection of fundamental rights and the rule of law? The jurisprudence of the European Court of Human Rights in Strasbourg in the following years will show if these measures have been justified and if the fundamental rights were properly protected in the country. After all the measures which were adopted by the Government must be in accordance with law and prescribed by law. This segments will determine if there was appropriate application of the rule of law, not only in the Republic of North Macedonia, but also in all other countries signatories to the European Convention on Human Rights.
The main fears when declaring state of emergency lie in the fact that the given authorities can be abused, concentrated in one branch of power (mostly the executive) and used to create regimes opposite the need to deal with the pandemic and health crisis which has been the case of Hungary and Poland.5 Derogation of human rights means that certain rights will be restricted in order to preserve the people’s health, but in the same time will affect the proper implementation of the rule of law. Notably we should not forget that exercising one human rights should not be diminish by the proper application of other human rights. Violations of the guaranteed human rights will always point to problems in functioning of the rule of law.
As a closure to this discussion about the relationship between fundamental rights and rule of law, it is inevitable to point out that we still live in a world where widespread human rights violations are the norm rather than the exception. Rule of law is seen as directly integral to the implementation of rights and is integral to and necessary for democracy and good governance. Attempts to diminish human rights also will have reflection on the rule of law due to the fact that their relationship is complex and they both are dependant between themselves. The spread of coronavirus will challenge the functional democracy and the protection of fundamental rights, but states, including Republic of North Macedonia should strive to achieve better compliance of the rule of law and in the same time better protection of fundamental rights.
 The EU’s founding values include the rule of law and respect for human rights. A proper functioning judicial system and an effective fight against corruption are of paramount importance, as is the respect for fundamental rights in law and in practice
 European Commission. 2019. “Commission staff working document North Macedonia 2019 – Report Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2019 Communication on EU Enlargement Policy” SWD(2019) 218 final, available at: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20190529-north-macedonia-report.pdf
 European Commission, 2020. “Commission staff working document North Macedonia 2020 Report”, available at: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/north_macedonia_report_2020.pdf SWD(2020) 351 final
 North Macedonia activated Article 15 from the European Convention on Human Rights by submitting note verbale to the Council of Europe on 2 April 2020, https://rm.coe.int/16809e1288
 In Hungary, the Government delivered a decision to prolong the state of emergency indefinitely, to authorize the Government to rule by decree without time limit, and to weaken the emergency oversight of the Parliament. While, the Polish Government changed the electoral code against the judgment of Constitutional tribunal and provisions laid by law and hold Presidential elections in the middle of a pandemic, which endangered the lives of Polish citizens and undermined the concept of equal, free, direct and secret elections as enshrined in the polish Constitution.