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.

  • North Macedonia
  • Sep 16, 2009
  • Constitutional Court of the Republic of Macedonia
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Parties

Plaintiff

  • Miroslav Grcev
  • Stamen Filipov

Defendant Republic of Macedonia

Legislation Cited

International/Regional Instruments Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"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."