The Administrative state and the right to respect one's private and family life in North Macedonia

Unclear administrative procedures additionally burdened with various bureaucratic manoeuvres can directly affect the protection of citizens’ rights, this is visible in the cases held in front of the European Court of Justice that are initiated as a need for the protection against the decisions of the country’s administrative authorities.

As a result of past legacies, the administrative state in North Macedonia was (and still is to a certain extent) highly bureaucratic, hence, under the influence of EU integration processes, it cannot be overseen that the established concepts and related understandings are already changing. As a result, the state has become more service-oriented towards citizens and more aware that provided services need to be within the frame of legality and rule of law principles, regardless of how distant or unfamiliar state authorities are with the requested services. With the omission of an act or if acting outside of the set legal competences, citizen’s rights are highly affected, especially the rights of those marginalised and stigmatised by the majoritarian community (homosexual and transgender populations, people with special needs, even women in some cases). Struggle for their involvement and protection is a general struggle towards a more tolerant and inclusive society and European values play a great role in that respect. Moreover, the judgments of the European Court of Human Rights have a great impact on the decision-making processes of a wide range of state administrative bodies.

A citizens’ protection against state bodies’ decisions is a modern product and follows the recent developments in which the citizens’ rights are in the focus of the modern administrative state. Based on that position, the state has a variety of duties that encompass the accountability of administrative authorities and the remedies available to the citizens, when they are confronted with the potential abuse of power.

The direct impact on the protection of human rights can be seen in North Macedonia’s legal framework concerning the fundamental rights that are largely in line with the European standards. However, there are mechanisms that are not yet fully operational which are a potential barrier towards the full enjoyment of those granted rights. This particularly affects certain citizens whose rights are commonly in jeopardy.

Two recent cases held in front of the European Court of Human Rights against the Republic of North Macedonia for violation of Article 8 of the European Convention of Human Rights on the right to respect the private and family life without any discrimination on any grounds (set as a rule in Article 14 in the same Convention), can illustrate that practice. In the first case (the case of X v. the former Yugoslav Republic of Macedonia) the applicant was objecting to an arbitrarily created rule by state authorities, in respect of a request for change of the sex/gender marker in the civil status register. The requested condition, that the applicant would have needed to fulfill to obtain the desired change, was not predicted in the domestic legal frame neither had a judicial practice been established in this respect. The newly created condition assumed surgery as a proof of a change of gender. There is no regulation, nor consensus even among the European states when it comes to legal gender recognition, and the states are enjoying a wider margin of appreciation in that respect, however, the lack of statutory regulations creates legal uncertainty, and that can lead to inconsistent practice. Article 8 of the European Convention on Human Rights protects the private life i.e., individuals are protected against the arbitrary interference of public authorities, and the State has a positive obligation to protect and respect the granted rights.

The second case is more recent and follows the same logic of administrative behaviour. Namely, in the case (Judgments and decisions of 13.02.2020-1) the applicants complained about the appropriation and retained possession of their DNA as the country does not have a legislative framework or regulation that clearly sets the taking, using, processing, storing and deletion of DNA material. The applicants claimed that their right to private life under Article 8 had been violated. The authorities pointed out, that by general understanding the Police, under the domestic law, are authorised to collect, process and store an individual’s personal data when there is reasonable suspicion that he or she has committed a crime, but the Court found that the abovementioned situation is set in terms that are too extensive and has not as yet specified how the DNA material could be retained. Thus, the Court found that the applied powers were too extensive and indiscriminate, and were not accompanied by the necessary safeguards of the applicants’ rights. The Court saw an imbalance between competing public and private interests, and, as in the previous case, found that the state had crossed the acceptable margin of appreciation, interfered disproportionately and with that, had also violated the applicants’ rights. Furthermore, the Court assessed the participation of the administrative authorities as unnecessary in democratic society.

Following the previously cited cases, the establishment of legally regulated gender recognition procedures has been initiated together with the country’s attempts to address the given recommendations. Likewise, it is of utmost importance to implement the judgments of the European Court of Human Rights, as well as the recommendations of European and other international human rights bodies in relation to detention, gender equality and the rights of persons with disabilities.

Natalija Shikova is an Assistant Professor at the Faculty of Law at the International Balkan University (North Macedonia). Her primary areas of interest are International law and EU law. Except for the academics, she has experience as a practitioner and expert in various national and international projects related to developing the administrative capacities and EU integration. She likes challenges, but since the Europeanization proved to be a long-lasting process, to stay in shape, she practices hiking and jigsaw puzzle solving.