SKENDER v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
David Thór Björgvinsson
The applicant, Mr Fatmir Skender, Turkish by birth, is a national of the former Yugoslav Republic of Macedonia. He was born in 1966 and lives in the village of Mal Papradnik, Centar Župa. The facts of the case, as submitted by the parties, may be summarised as follows. According to the Primary Education Act, pupils have to attend State primary schools in their place of residence. However, in the school situated in the applicant's district Centar Župa no classes in Turkish were available. Between September and 18 December 1996 the applicant's older daughter attended the primary school in the village of Kođađik in a different district where education in Turkish was provided. However, according to the applicant, on 19 December 1996 classes were allegedly interrupted by the police and the school director announced that pupils from other villages were no longer allowed to attend classes in the Kođađik school. On 11 June 1997 the Ministry of Education and Sport (“the Ministry”) refused the applicant's request of April 1997 to provide education in Turkish in Centar Župa. It stated, inter alia, the following: “... we inform you that the Council of Ministers ... [on] 2 September 1996 decided the following: 1. The Ministry of Education and Sport is responsible for providing education in the primary schools in the Municipality of Debar - Centar Župa in accordance with the Constitution and the Primary Education Act. 2. ... [education in] Macedonian cannot be replaced by [education in] Turkish [in Centar Župa], as the children have not been speaking Turkish before they started attending the school. 3. The Ministry ... is instructed to inform the parents of the pupils who boycotted the classes ... and request the [pupils] to return to the school [in Centar Župa] where special courses will be given so that [they could] catch up with the rest ... The Ministry of Education and Sport urges that your children attend the courses in the [primary school]... in Centar Župa in accordance with the Primary Education Act.” On 31 August 1999 the Ministry decided to provide education in Turkish in the school in Centar Župa for the pupils whose mother tongue was Turkish in accordance with the Council of Ministers' decision of 10 August 1999 to that effect. On 17 May 2000 the political party 'Liga za Demokratija' and the associations of citizens “The World Macedonian Congress” and “the Association of the Macedonians with Muslim Religion in Macedonia” asked the Constitutional Court to examine the constitutionality of the Council of Minister's decision of 10 August 1999 and the respective Ministry's decision of 31 August 1999. On 5 July 2000 the Constitutional Court declared the decisions null and void on the following grounds: “... ... it, inter alia, appears that (1) the impugned acts determined that Turkish was the mother tongue of all the pupils [residing in] the municipality of Centar Župa ... 5. Under Article 48 § 4 of the Constitution the members of the national minorities have the right to education in their language in primary and secondary schools in accordance with the respective law. In the schools where the education is in the languages of the minorities, the Macedonian language shall be studied as well. It follows that the members of the minorities are educated in the primary and secondary schools in their language, and that is, according to the court, the language of their choice [which they use] in their everyday life. Therefore, the provision of the Constitution established objective criteria for the fulfilment of the right to education of the national minorities in their language [which] does not depend on the subjective will of the State bodies ... The impugned acts provide education in Turkish for the pupils in the municipality of Centar Župa who use the Macedonian language of their choice in their everyday communications and, thereby, express their national identity, and who do not use the Turkish language in their everyday communications and of their choice. Thus, [the acts] exceeded the boundaries of the Constitutional framework setting out the rights of the national minorities to education in their language (Article 48 § 4 of the Constitution) and inhibited the achievement of the purpose of education - to provide knowledge, and impinged upon the very content of the right to education, i.e. the [right to] education is being manipulated with the purpose of changing the national identity of a number of pupils in the municipality. Therefore, the court finds that the impugned acts are not in conformity with the aforementioned Constitutional provision. ...” On 22 February 1997 the applicant asked the Kođađik school to admit his older daughter. Since he received no reply, on 20 March 1997 he complained to the Second Instance Government Commission (“the Commission”). No reply was received by the applicant. On 4 June 1997 the applicant brought administrative proceedings before the Supreme Court, arguing that his daughter had the right to education in Turkish. On 16 June 1997 the Kođađik school refused to enrol the applicant's older daughter as the applicant's place of residence was in a different district. On 8 October 1997 the Supreme Court refused to examine the applicant's complaint on the merits in respect of the Kođađik school's refusal to enrol his older daughter. It, inter alia, stated: “... Under section 26 § 1 of the Administrative Disputes Act if the second instance administrative body does not pass a decision within sixty days, and on the person's repeated request to act does not reply within seven days, the person may institute administrative proceedings ... ... it cannot be established from the submitted documents that the [second instance] administrative body received [the applicant's] second request to act ... it follows that the complaint is premature. The applicant's request that the Ministry provides education in Turkish ... is inadmissible, as under section 6 of the Administrative Disputes Act a complaint may only be lodged concerning the administrative acts and the [applicant's] request is not an administrative act ...” On 28 May 1998 the applicant requested the Constitutional Court to quash the Supreme Court's decision of 8 October 1997. He, inter alia, complained that the court had assessed the evidence wrongly and that his daughter had been discriminated against as a result of the Supreme Court's decision since she was denied access to a Turkish-speaking school. On 17 June 1998 the applicant was informed that the Constitutional Court had not been competent to deal with his complaint. On 9 December 1998 the Constitutional Court refused to examine the applicant's complaint that the Supreme Court's decision of 8 October 1997 interfered with his daughter's right to education in Turkish. It, inter alia, held that: “... the Supreme Court did not decide on the enjoyment of the right to primary education in the language of the minorities, but on the procedural conditions ... to institute administrative proceedings, as such [the decision] cannot have any repercussions in favour or to the disadvantage of the applicant ... ... the [impugned] decision is procedural and [does not examine] the merits and does not concern the right to primary education in the minorities' languages, therefore, the court holds that there are procedural impediments to examine the applicant's complaint ... ...” On 18 May 1998, the applicant requested that his younger daughter D. be enrolled in the Turkish-speaking primary school in Kođađik. On 28 August 1998 the applicant's request was refused by the Principal of the school as he lived in another district. On 31 August 1998 the applicant applied to the Supreme Court to expand his existing claim concerning his older daughter with complaints concerning his younger daughter D. On 21 October 1998, the Supreme Court informed the applicant that it was not possible to expand his claim as the case concerning his older daughter had terminated on 8 July 1998 and that his application would be treated as concerning a new claim. He was requested to identify and provide a copy of the administrative act against which the claim was directed within fifteen days. On 6 November 1998, the applicant wrote to the local office of the Ministry lodging an objection with the refusal of the Kođađik school to enrol D. On 23 December 1998 the Supreme Court refused to examine the applicant's complaint about the school's refusal on the ground that he had not complied with the fifteen day time-limit for completing his appeal. On 1 February 1999 the applicant complained to the Commission that he had not received a reply to his objection. On 4 March 1999 the Ministry informed the applicant that he should enrol his daughter in the school in his place of residence. On 15 March 1999 the applicant applied again to the Commission, considering that this was neither a decision nor an administrative act and requiring that a decision be taken. On 28 April 1999, having not received an answer from the Commission, the applicant lodged an administrative complaint with the Supreme Court. From 1 September 1999, following the decision of the Ministry on 31 August 1999, children in the primary school in Centar Župa whose parents had requested them to be taught in Turkish, including the applicant's daughter D., commenced their regulation education classes which were conducted in Turkish. On 24 November 1999, the Supreme Court requested the applicant to specify the basis of his complaints. On 21 November 2000 the Supreme Court dismissed the applicant's administrative complaint on the ground that under the Primary Education Act pupils were assigned to schools in accordance with their place of residence and that he had been informed that his daughter had to attend the school in Centar Župa. The court further relied on the Constitutional Court's decision of 5 July 2000 annulling the Government's decisions to provide education in Turkish in Centar Župa. The Centar Župa primary school attended by D. continues to teach regular classes in Macedonian, Albanian and Turkish. Article 44 provides as follows: “Every person has the right to education. Education is accessible to all persons under equal conditions. Primary education is compulsory and free of charge.” Article 48 provides as follows: “The members of minorities have the right to express, nurture and promote their identity and national attributes. The Republic guarantees the protection of their ethnic, cultural, linguistic and religious identity. The members of minorities have the right to establish institutions for culture and art, as well as scientific and other associations to express, nurture and promote their identity. The members of minorities have the right to education in their language in the primary and secondary schools in accordance with the relevant law. In the schools where the education is provided in the minorities' languages, the Macedonian language shall also be taught.” Article 110 § 3 sets out the Constitutional Court's competence to deal with complaints from individuals concerning violation of their rights and freedoms to communication, conscience, opinion and public expression, political association and activities, as well as prohibition of discrimination on the grounds of gender, race, religion or national, political or social affiliation. Article 112 provides that the Constitutional Court shall repeal or revoke a law if it determines that it does not conform to the Constitution and that it shall repeal or revoke any other regulation or enactment, collective agreement, statute or programme of a political party or association, if it determines that it does not conform to the Constitution or law. Section 51 provides that a person who claims to be a victim of a violation of one of the rights set out in Article 110 § 3 of the Constitution shall have the right to file an application with the Constitutional Court. Section 8 provides, inter alia, that the members of minorities shall have the right to education in their own language. They shall also study the Macedonian language. Section 45 provides that primary schools shall admit all the pupils living in their district. Sections 46 and 47 provide that the parents are responsible for the enrolment of their children and for their regular attendance at the classes. The primary school shall inform the Ministry of Education and Sport about the pupils of its area who have not enrolled, or have not attended the classes for more then thirty days without a justification. Section 48 provides, inter alia, that on the parents' or guardians' request the pupils may be transferred to another school. Section 230 provides that an appeal can be lodged against a decision of an administrative body with the second instance administrative body within fifteen days. Section 26 § 1 provides that a person may institute administrative proceedings before the Supreme Court provided that the second instance administrative body does not decide on the matter within sixty days from the day the appeal against the first instance administrative body is received, and does not react within seven days on the person's repeated request.