Miroslav Grcev and Stamen Filipov to the Constitutional Court
Petitioners challenged the constitutionality of the Anti-Smoking Law, alleging that its smoking ban violated a number of protected rights including those of personal autonomy, equal protection, freedom of the market and entrepreneurship, and freedom of movement of smokers. They also alleged that the law was unconstitutional due to arbitrary and inconsistent provisions and amendments. The Constitutional Court of Macedonia disagreed with these arguments, and found the law constitutional. It noted that the Macedonian Constitution permits the restrictions of rights for the protection of health, and also cited the right to health as enshrined in the International Covenant on Economic, Social, and Cultural Rights, the WHO Constitution, and the WHO Framework Convention on Tobacco Control. It also found that there is a a false equivalence between the right to smoke and the rights enshrined in the Constitution, noting that only restrictions imposed on smokers are with respect to the health of other citizens, and no equal protection issues are raised. The Court affirmed the rights of the legislature to impose and amend restrictions to protect the public health.
Miroslav Grcev and Stamen Filipov to the Constitutional Court, Case No. 261/2008-0-0 of 16 September 2009, Constitutional Court of Macedonia.
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
A violation of freedom of the right to travel, reside in, and/or work in any part of the state where one pleases within the limits of respect for the liberty and rights of others. Smokers may claim that smoke free laws violate this right.
A violation of the public’s right to information. The tobacco industry may claim that advertising, promotion or sponsorship, or packaging regulations limit the industry’s ability to communicate information to their customers and therefore infringes on the customer’s right to receive information, and to distinguish one product from another. Alternatively, public health advocates may claim that tobacco industry misinformation violates their right to accurate information or that government must be transparent in its dealings with the tobacco industry.
A violation of the right to live in a safe and healthy environment.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"There are no stipulations in the Law with which the legislator prohibits the individual to smoke or not, i.e. the Law does not consider their personal determination whether to smoke or not, but only obliges smokers to restrain from smoking in environments, places and facilities where there is contact with nonsmokers thus providing protection not only to their health, but also to the health of the other citizens, which is also a constitutional duty. All places stipulated by the legislator as public premises where smoking is prohibited are accessible to the individual-smoker, however they should adjust their behavior to the behavior of the other citizen-nonsmokers, in a manner and under conditions stipulated by law and which refer to all the citizens under same conditions. According to the opinion of the Court, the contested provisions and the Law in its entirety neither have the goal nor represent limitations to the determination of the individual to smoke, but are oriented to protection of life and health of other people as much greater values which can be jeopardized through the smokers’ irresponsible behavior, and thus it cannot be said that these are used to discriminate smokers in respect of nonsmokers. The Court also marked that the allegations from the initiatives, that the contested provisions restricted the freedom of the market and entrepreneurship determined in Article 55 of the Constitution, are unfounded. According to the Court, this is because the legislator has the legitimate right to stipulate the relations in the separate areas of the social life, and it is in this sense that it stipulates the issue of the prohibition of smoking."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
Petitioners challenged the constitutionality of the Anti-Smoking Law, alleging that its smoking ban violated a number of protected rights including those of personal autonomy, equal protection, freedom of the market and entrepreneurship, and freedom of movement of smokers. They also alleged that the law was unconstitutional due to arbitrary and inconsistent provisions and amendments. The Constitutional Court of Macedonia disagreed with these arguments, and found the law constitutional. It noted that the Macedonian Constitution permits the restrictions of rights for the protection of health, and also cited the right to health as enshrined in the International Covenant on Economic, Social, and Cultural Rights, the WHO Constitution, and the WHO Framework Convention on Tobacco Control. It also found that there is a a false equivalence between the right to smoke and the rights enshrined in the Constitution, noting that only restrictions imposed on smokers are with respect to the health of other citizens, and no equal protection issues are raised. The Court affirmed the rights of the legislature to impose and amend restrictions to protect the public health.