Violation of the right to equality in access to work
13.09.2023
1. Facts
The plaintiff A.H. is a person who submitted an asylum request in the Republic of North Macedonia for a period of two years until the filing of the lawsuit, and who for the entire period supports himself from his own funds and lives outside the reception center.
The plaintiff submitted the request for recognition of the right to asylum to the asylum sector on October 12, 2017. Acting on the request, the Asylum Department issued Decision no. 12.3-69364/8 with which he rejected the request for recognition of the right to asylum of the present plaintiff. Against the decision, the plaintiff filed a lawsuit to initiate an administrative dispute before the Administrative Court. Acting on the lawsuit, the Administrative Court made a decision rejecting the lawsuit as unfounded. Against the Judgment of the Administrative Court, the plaintiff filed an appeal to the Higher Administrative Court, and the procedure following the appeal was still ongoing until the day of the commencement of the civil proceedings. This means that until the day of filing the lawsuit before the Basic Civil Court in Skopje, his request for asylum has not been decided in the last instance. During the period of his stay in RNM, the plaintiff approached the labor market, looking for a job in order to independently provide means of subsistence, but after finding a job, the plaintiff encountered real problems when he wanted to establish an employment relationship, and he could not do the same. In this regard, on October 26, 2018, through the Macedonian Association of Young Lawyers from Skopje, the plaintiff submitted a Request for the determination of an identification number for a foreigner to the Ministry of Internal Affairs, Asylum Sector, in order to exercise his right of access to the labor market. Acting on the request, the Ministry of Internal Affairs submitted a response to the Macedonian Association of Young Lawyers, with which it was informed that since the claimant's request for recognition of the right to asylum was rejected, he was not issued a foreigner identity number. On June 12, 2019, the Macedonian Association of Young Lawyers from Skopje submitted a request to the Employment Agency of the Republic of North Macedonia, which is also sued in the court proceedings in question. With the submitted request, the Employment Agency, as the competent authority, was requested to resolve the plaintiff's issue as soon as possible, that is, to obtain an appropriate permit with which he will be able to exercise his right to free access to the labor market. Association of Young Lawyers, informing them that in view of the fact that the person A.H. he still does not have the status of an asylum seeker and a regulated residence in RNM, nor does he have a foreigner's identity number determined by a competent authority, at that moment there is no legal basis and possibility to grant a work permit to the person A.H. nor to include the person in the records of foreign citizens and persons without citizenship who seek employment or are employed by the RNM. After this, the person A.H. the plaintiff in the procedure submitted two more submissions to the Ministry of Labor and Social Policy and the Ministry of Internal Affairs, as well as a complaint to the Ombudsman, but all these actions did not result in the resolution of the situation, after which the court proceedings in question were initiated.
2. Filing of the lawsuit, first instance procedure and decision of the Basic Civil Court in Skopje number 22P4-849/19 of 13.07.2021.
The plaintiff A.H. filed a lawsuit to the Basic Civil Court in Skopje on 08.11.2019 against the Employment Agency of the Republic of North Macedonia, with which he sought to establish that the defendant, the Employment Agency of the Republic of North Macedonia, violated the plaintiff's right to equality, i.e. committed indirect discrimination with a more severe form on the basis of personal and social status in labor relations and put the plaintiff in a disadvantageous position by violating the right of the plaintiff in exercising his right to free access to a workplace/right to free access to the labor market. At the same time, the lawsuit demanded a ban on any further taking of actions by the defendant, the Employment Agency of the Republic of North Macedonia, which violate the plaintiff's right in the field of labor relations - exercising his right to free access to a workplace/right to free access to the labor market, as well as obliging the defendant, the Employment Agency of the Republic of North Macedonia, to issue a work permit to the plaintiff within 8 days of receiving the judgment at the latest. With the lawsuit, as is the case in the discrimination proceedings, also is requested an order for the public announcement of the verdict in the daily newspapers in R. S. Macedonia at the defendant's expense. In the same lawsuit, another petition was filed and it was requested to establish that the defendant Employment Agency of the Republic of North Macedonia violated his right to free access to a workplace/right to free access to the labor market, by refusing to issue him a permit for the plaintiff's work and to oblige the defendant, the Employment Agency of the Republic of North Macedonia, to issue a work permit to the plaintiff within 8 days of receiving the judgment at the latest. The main legal basis for filing the lawsuit is contained in art. 48 paragraph 1 paragraph 7 of the Law on Asylum and Temporary Protection, according to which "Asylum seekers, pending the adoption of a final decision in the procedure for recognizing the right to asylum, have the right to: - work only within the Reception Center or another place of accommodation determined by the Ministry of Labor and Social Policy, as well as the right to free access to the labor market for an asylum seeker whose request for recognition of the right to asylum has not been resolved within a period of one year, after the expiry of the period of one year. According to the allegations in the lawsuit, from the day when the request for asylum was submitted by the plaintiff, 12.10.2017, to the day of the lawsuit, two whole years had passed. and there is no final decision on the same, hence the Employment Agency is violating the law and discriminating against the person A.H. because of his personal and social status as an asylum seeker, in the field of labor relations. In the lawsuit, the plaintiff also refers to Article 6 of the Law on Prevention and Protection from Discrimination, which defines discrimination, as well as Articles 8, 13, 34, 37 of the same law, which more specifically explain the discriminatory grounds for the specific lawsuit. According to the plaintiff, the legal basis for him to sue the employment agency is also established in Article 10, Paragraph 3, Paragraph 5 of the Law on Employment and Work of Foreigners, according to which an application for a work permit can be submitted by a foreigner who has regulated his stay in the country after other basis, in the Employment Agency or in other premises determined by the Employment Agency. In addition to these legal provisions, provisions from the Constitution of the RNM are cited in the lawsuit, Articles 8, 29, 32 and 54. The plaintiff also refers to international norms, i.e. the Universal Declaration of Human Rights of the United Nations, of which the Republic of Moldova is a member, and where Article 2 provides for the principle of equality as an Article 7 of the same declaration provides for the prohibition of discrimination. The lawsuit also cites Article 14 of the European Convention on Human Rights and Protocol 12 to it, which prohibit discrimination. The first-instance court, after two hearings held and the presentation of the evidence on 13.07.2021, passed the first-instance judgment under number 22P4-849/19, which rejected the plaintiff's claim in its entirety and charged him with costs in the procedure in the total amount of 54,304, denars. According to the first-instance court, the defendant had no legal basis and opportunity to issue a work permit to the plaintiff, nor to enter him into the records of foreign nationals and stateless persons who seek employment or are employed in the Republic of North Macedonia, and in accordance with the cited legal provisions, with considering that the plaintiff's request for recognition of the right to asylum was acted upon from 12 October 2017 and a final administrative act was adopted, with which the request was rejected on the one hand, and on the other hand, in conditions where the defendant has no legal competence, nor authority to determine the identification number of a foreigner, but the only competent authority in the Republic of North Macedonia is the Ministry for internal affairs. The circumstance that also contributed to this decision, was that in the meantime, during the duration of the court proceedings, the appeal procedure before the Higher Administrative Court was completed, in which the first-instance verdict was officially confirmed in the last instance on 03.04.2020, rejecting the administrative lawsuit against the decision rejecting the claimant's asylum request. Also, when deciding, the first-instance court also took into account the fact that in the specific case there was no person, as a comparative sample, who under the same conditions as the plaintiff obtained a work permit from the defendant and was entered into the defendant's record of foreign nationals and for persons without citizenship who seek employment or are employed in the Republic of North Macedonia. Taking into account such a first-instance verdict and analyzing the court's actions, several aspects are inevitably noticed that can qualify the reasons for such a verdict as inconsistent with what is the subject of the lawsuit. Namely, it is indisputable that on the date of filing the lawsuit in question, 08.11.2019, the plaintiff's asylum procedure was still ongoing, as an appeal procedure was being conducted against the first-instance decision of the administrative court and in connection with the administrative decision rejecting the request for plaintiff's asylum. Given that the procedure was in progress and lasted more than two years until the day of filing the lawsuit in question, the plaintiff, according to the Law on Asylum and Temporary Protection, indisputably acquired the right to free access to the labor market. The Employment Agency of the Republic of North Macedonia rejected the claimant's request for a work permit because the claimant did not yet have the status of an asylum seeker, regulated residence in the country, or a foreigner's identification number, referring to the provisions of the Law on Employment and Work of Foreigners. However, the plaintiff, who was an asylum seeker, did not seek the exercise of the right to access the labor market on the basis of the status of an asylum seeker or a foreigner with a regulated residence and a national ID number in the country, but on the basis of the right to as a foreigner in the process of obtaining a right of asylum that lasts more than 1 year has the right to access the labor market. After all, according to the Law on Employment and Work of Foreigners - Article 10, Paragraph 3, Paragraph 5, "a foreigner seeking the right to asylum whose request for recognition of the right to asylum has not been resolved within a period of one year, after the expiration of the period of one year (the work permit is issued for three months with the possibility of extension)" Hence, the first-instance court applied a restrictive interpretation of the substantive law in the Republic of North Macedonia, while applying legal provisions that refer to other categories of persons (asylum seekers and foreigners with regulated residence and identity number). Also, the restrictiveness of the interpretation of the legal provisions can be seen in the fact that the court stated that the Employment Agency could not issue the plaintiff's identity number, which was needed as data for the record of issued work permits together with the identity card for a foreigner. However, bearing in mind that this is an active asylum seeker whose procedure was still ongoing at the time the lawsuit was filed and to whom the Ministry of Internal Affairs did not issue a foreigner identification number, the plaintiff cannot in any case be obstructed in his legal right of access to work. Also, the first-instance court restrictively interpreted the status of the plaintiff, which is an asylum seeker whose request has not been resolved. According to the first-instance court, the rejection of the claimant's asylum request by an administrative act of 12 October 2017 was final, hence through multiple repetitions of this circumstance in the reasoning of the judgment, the first-instance court as if it had been established that the claimant does not have the status of an active asylum seeker, although in progress it was a secondary procedure in an administrative dispute. Furthermore, the first-instance court quite restrictively and incorrectly interpreted the circumstance related to discrimination when it determined that in the specific case there was no person, as a comparative sample, who under the same conditions as the plaintiff obtained a work permit from the defendant and was entered into the defendant's records for foreign citizens and persons without citizenship who are seeking employment or are employed in the Republic of North Macedonia. This is due to the fact that in the lawsuit itself it is requested to establish unequal treatment with other job seekers, regardless of whether they are citizens of the Republic of North Macedonia or foreigners, that is, putting the plaintiff in a disadvantageous position with a violation of the plaintiff's right in exercising his right to free access to a workplace/right to free access to the labor market. Namely, when the plaintiff has already legally acquired the right to establish an employment relationship, he is on the same level as all those who have this right in the country, hence the first-instance court completely unjustifiably limits itself to seeking a comparative sample of a foreigner who was entered into the records of the defendant for foreign citizens and for persons without citizenship who seek employment or are employed in the Republic of North Macedonia.
3. Filing of an appeal and adoption of the Appellate Judgment GŽ-610/22
Dissatisfied with the first-instance verdict, the plaintiff filed an appeal on 28.09.2021, refuting the first-instance verdict on three grounds, namely, essential violation of the provisions of the procedure, wrongly established factual situation and wrong application of substantive law, and the second-instance court is requested to cancel it the first-instance verdict and modify the verdict in a way that will approve the lawsuit in its entirety, or annul the first-instance verdict and send the case back for a new trial. In the submitted appeal, the plaintiff also states that the first instance court did not fully decide on the submitted claim and decided only on the claim related to establishing a violation of the right to equality, but not a violation of the right to free access to work and the labor market. The complaint also states that the plaintiff is discriminated against in comparison to others who have access to work. In continuation of the appeal, the plaintiff refers to the violation of a large number of legal provisions that the first-instance court misinterpreted and applied in the reasoning of the judgment. Acting on the complaint of the plaintiff, the Court of Appeal in Sopje on 02.03.2022 passed the verdict under number GŽ-610/22, which rejected the complaint filed by the plaintiff, and confirmed the first-instance verdict in its entirety. In the appellate judgment, the plaintiff obliges the defendant to compensate him for the costs in the appellate procedure in the total amount of 8,884 denars. If one examines the rationale of this judgment passed by the Court of Appeal in Skopje, it can be seen that the second-instance court structurally decided on all the prominent violations, but did not provide a sufficiently detailed and comprehensive explanation in which it states the reasons for the judgment passed. So, in this direction, in the section explaining the reason why the second-instance court considers that the allegations highlighted in the appeal for a substantial violation of the provisions of the procedure are unfounded, the appellate court simply states that the allegations are unfounded and that the first-instance verdict is clear and contains sufficiently reasoned reasons and decisive facts without specifying and citing where such a conclusion comes from. The same thing happens in the part of the allegations in the complaint that the first instance court did not decide in its entirety on the claim petition, where it is said as an explanation that the court decided within the framework of the set request without further explanation. In the part of the explanation of the appeal allegations about the wrongly established factual situation, the second-instance court literally states all the evidence from the first-instance procedure and states that according to them the factual situation was correctly derived by the fifth-instance court, but it does not stop specifically explaining the part of the injuries stated in the submitted appeal. The same type of reasoning that literally repeats several times the evidence presented by the first-instance court and repeats the allegations from the first-instance procedure without going into the specific violations stated in the complaint is also found in the part where the decision is made on the complaint allegations about the discrimination committed by a more serious form committed against the defendant. This part literally rewrites the part where the first-instance court finds that the Republic of North Macedonia has an obligation to directly apply the provisions of the international instruments, concluded and ratified in accordance with the Constitution of the RNM, which prohibit discrimination in the sense of the International Convention on the Abolition of All Forms of racial discrimination, The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the European Convention on Human Rights. Protocol 12 to the ECHR, the Framework Convention for the Protection of National Minorities within the EU. The directive for the implementation of the principle of equal treatment between persons, regardless of their racial or ethnic origin. The principle of prohibition of discrimination is a fundamental principle of the EU Treaty, which in its preamble states the connection to the principles of freedom, democracy and respect for human rights and fundamental freedoms, as well as the rule of law. Article 13 of the Treaty on the European Communities ensures the competence of the EU in relation to member states in the field of the fight against discrimination on the basis of, among other things, personal and social status. In the sense of the above, the principle of non-discrimination is established in the Constitution of RNM as one of the basic principles on which the highest zealous act is based. Namely, in art. 9 of the Constitution of the RNM stated that the citizens of the Republic of Moldova are equal in freedoms and rights, regardless of gender, race, skin color, national and social origin, political and relational belief, property and social position. From here, taking into account the above, as well as the mentioned legal provisions and international regulations, the court correctly determined that in the specific case, when exercising its legal powers, the defendant did not violate the plaintiff's right to equal treatment with any action he took. In the part of the appeal allegations for incorrect application of the substantive law, the Court of Appeals, as seen from the explanation of the judgment, did not even give a ruling and did not give an explanation, and ended the second-instance verdict simply by stating that the other appeal allegations were also subject to assessment, but the court found that they were without influence. for a different decision.
The plaintiff A.H. is a person who submitted an asylum request in the Republic of North Macedonia for a period of two years until the filing of the lawsuit, and who for the entire period supports himself from his own funds and lives outside the reception center.
The plaintiff submitted the request for recognition of the right to asylum to the asylum sector on October 12, 2017. Acting on the request, the Asylum Department issued Decision no. 12.3-69364/8 with which he rejected the request for recognition of the right to asylum of the present plaintiff. Against the decision, the plaintiff filed a lawsuit to initiate an administrative dispute before the Administrative Court. Acting on the lawsuit, the Administrative Court made a decision rejecting the lawsuit as unfounded. Against the Judgment of the Administrative Court, the plaintiff filed an appeal to the Higher Administrative Court, and the procedure following the appeal was still ongoing until the day of the commencement of the civil proceedings. This means that until the day of filing the lawsuit before the Basic Civil Court in Skopje, his request for asylum has not been decided in the last instance. During the period of his stay in RNM, the plaintiff approached the labor market, looking for a job in order to independently provide means of subsistence, but after finding a job, the plaintiff encountered real problems when he wanted to establish an employment relationship, and he could not do the same. In this regard, on October 26, 2018, through the Macedonian Association of Young Lawyers from Skopje, the plaintiff submitted a Request for the determination of an identification number for a foreigner to the Ministry of Internal Affairs, Asylum Sector, in order to exercise his right of access to the labor market. Acting on the request, the Ministry of Internal Affairs submitted a response to the Macedonian Association of Young Lawyers, with which it was informed that since the claimant's request for recognition of the right to asylum was rejected, he was not issued a foreigner identity number. On June 12, 2019, the Macedonian Association of Young Lawyers from Skopje submitted a request to the Employment Agency of the Republic of North Macedonia, which is also sued in the court proceedings in question. With the submitted request, the Employment Agency, as the competent authority, was requested to resolve the plaintiff's issue as soon as possible, that is, to obtain an appropriate permit with which he will be able to exercise his right to free access to the labor market. Association of Young Lawyers, informing them that in view of the fact that the person A.H. he still does not have the status of an asylum seeker and a regulated residence in RNM, nor does he have a foreigner's identity number determined by a competent authority, at that moment there is no legal basis and possibility to grant a work permit to the person A.H. nor to include the person in the records of foreign citizens and persons without citizenship who seek employment or are employed by the RNM. After this, the person A.H. the plaintiff in the procedure submitted two more submissions to the Ministry of Labor and Social Policy and the Ministry of Internal Affairs, as well as a complaint to the Ombudsman, but all these actions did not result in the resolution of the situation, after which the court proceedings in question were initiated.
2. Filing of the lawsuit, first instance procedure and decision of the Basic Civil Court in Skopje number 22P4-849/19 of 13.07.2021.
The plaintiff A.H. filed a lawsuit to the Basic Civil Court in Skopje on 08.11.2019 against the Employment Agency of the Republic of North Macedonia, with which he sought to establish that the defendant, the Employment Agency of the Republic of North Macedonia, violated the plaintiff's right to equality, i.e. committed indirect discrimination with a more severe form on the basis of personal and social status in labor relations and put the plaintiff in a disadvantageous position by violating the right of the plaintiff in exercising his right to free access to a workplace/right to free access to the labor market. At the same time, the lawsuit demanded a ban on any further taking of actions by the defendant, the Employment Agency of the Republic of North Macedonia, which violate the plaintiff's right in the field of labor relations - exercising his right to free access to a workplace/right to free access to the labor market, as well as obliging the defendant, the Employment Agency of the Republic of North Macedonia, to issue a work permit to the plaintiff within 8 days of receiving the judgment at the latest. With the lawsuit, as is the case in the discrimination proceedings, also is requested an order for the public announcement of the verdict in the daily newspapers in R. S. Macedonia at the defendant's expense. In the same lawsuit, another petition was filed and it was requested to establish that the defendant Employment Agency of the Republic of North Macedonia violated his right to free access to a workplace/right to free access to the labor market, by refusing to issue him a permit for the plaintiff's work and to oblige the defendant, the Employment Agency of the Republic of North Macedonia, to issue a work permit to the plaintiff within 8 days of receiving the judgment at the latest. The main legal basis for filing the lawsuit is contained in art. 48 paragraph 1 paragraph 7 of the Law on Asylum and Temporary Protection, according to which "Asylum seekers, pending the adoption of a final decision in the procedure for recognizing the right to asylum, have the right to: - work only within the Reception Center or another place of accommodation determined by the Ministry of Labor and Social Policy, as well as the right to free access to the labor market for an asylum seeker whose request for recognition of the right to asylum has not been resolved within a period of one year, after the expiry of the period of one year. According to the allegations in the lawsuit, from the day when the request for asylum was submitted by the plaintiff, 12.10.2017, to the day of the lawsuit, two whole years had passed. and there is no final decision on the same, hence the Employment Agency is violating the law and discriminating against the person A.H. because of his personal and social status as an asylum seeker, in the field of labor relations. In the lawsuit, the plaintiff also refers to Article 6 of the Law on Prevention and Protection from Discrimination, which defines discrimination, as well as Articles 8, 13, 34, 37 of the same law, which more specifically explain the discriminatory grounds for the specific lawsuit. According to the plaintiff, the legal basis for him to sue the employment agency is also established in Article 10, Paragraph 3, Paragraph 5 of the Law on Employment and Work of Foreigners, according to which an application for a work permit can be submitted by a foreigner who has regulated his stay in the country after other basis, in the Employment Agency or in other premises determined by the Employment Agency. In addition to these legal provisions, provisions from the Constitution of the RNM are cited in the lawsuit, Articles 8, 29, 32 and 54. The plaintiff also refers to international norms, i.e. the Universal Declaration of Human Rights of the United Nations, of which the Republic of Moldova is a member, and where Article 2 provides for the principle of equality as an Article 7 of the same declaration provides for the prohibition of discrimination. The lawsuit also cites Article 14 of the European Convention on Human Rights and Protocol 12 to it, which prohibit discrimination. The first-instance court, after two hearings held and the presentation of the evidence on 13.07.2021, passed the first-instance judgment under number 22P4-849/19, which rejected the plaintiff's claim in its entirety and charged him with costs in the procedure in the total amount of 54,304, denars. According to the first-instance court, the defendant had no legal basis and opportunity to issue a work permit to the plaintiff, nor to enter him into the records of foreign nationals and stateless persons who seek employment or are employed in the Republic of North Macedonia, and in accordance with the cited legal provisions, with considering that the plaintiff's request for recognition of the right to asylum was acted upon from 12 October 2017 and a final administrative act was adopted, with which the request was rejected on the one hand, and on the other hand, in conditions where the defendant has no legal competence, nor authority to determine the identification number of a foreigner, but the only competent authority in the Republic of North Macedonia is the Ministry for internal affairs. The circumstance that also contributed to this decision, was that in the meantime, during the duration of the court proceedings, the appeal procedure before the Higher Administrative Court was completed, in which the first-instance verdict was officially confirmed in the last instance on 03.04.2020, rejecting the administrative lawsuit against the decision rejecting the claimant's asylum request. Also, when deciding, the first-instance court also took into account the fact that in the specific case there was no person, as a comparative sample, who under the same conditions as the plaintiff obtained a work permit from the defendant and was entered into the defendant's record of foreign nationals and for persons without citizenship who seek employment or are employed in the Republic of North Macedonia. Taking into account such a first-instance verdict and analyzing the court's actions, several aspects are inevitably noticed that can qualify the reasons for such a verdict as inconsistent with what is the subject of the lawsuit. Namely, it is indisputable that on the date of filing the lawsuit in question, 08.11.2019, the plaintiff's asylum procedure was still ongoing, as an appeal procedure was being conducted against the first-instance decision of the administrative court and in connection with the administrative decision rejecting the request for plaintiff's asylum. Given that the procedure was in progress and lasted more than two years until the day of filing the lawsuit in question, the plaintiff, according to the Law on Asylum and Temporary Protection, indisputably acquired the right to free access to the labor market. The Employment Agency of the Republic of North Macedonia rejected the claimant's request for a work permit because the claimant did not yet have the status of an asylum seeker, regulated residence in the country, or a foreigner's identification number, referring to the provisions of the Law on Employment and Work of Foreigners. However, the plaintiff, who was an asylum seeker, did not seek the exercise of the right to access the labor market on the basis of the status of an asylum seeker or a foreigner with a regulated residence and a national ID number in the country, but on the basis of the right to as a foreigner in the process of obtaining a right of asylum that lasts more than 1 year has the right to access the labor market. After all, according to the Law on Employment and Work of Foreigners - Article 10, Paragraph 3, Paragraph 5, "a foreigner seeking the right to asylum whose request for recognition of the right to asylum has not been resolved within a period of one year, after the expiration of the period of one year (the work permit is issued for three months with the possibility of extension)" Hence, the first-instance court applied a restrictive interpretation of the substantive law in the Republic of North Macedonia, while applying legal provisions that refer to other categories of persons (asylum seekers and foreigners with regulated residence and identity number). Also, the restrictiveness of the interpretation of the legal provisions can be seen in the fact that the court stated that the Employment Agency could not issue the plaintiff's identity number, which was needed as data for the record of issued work permits together with the identity card for a foreigner. However, bearing in mind that this is an active asylum seeker whose procedure was still ongoing at the time the lawsuit was filed and to whom the Ministry of Internal Affairs did not issue a foreigner identification number, the plaintiff cannot in any case be obstructed in his legal right of access to work. Also, the first-instance court restrictively interpreted the status of the plaintiff, which is an asylum seeker whose request has not been resolved. According to the first-instance court, the rejection of the claimant's asylum request by an administrative act of 12 October 2017 was final, hence through multiple repetitions of this circumstance in the reasoning of the judgment, the first-instance court as if it had been established that the claimant does not have the status of an active asylum seeker, although in progress it was a secondary procedure in an administrative dispute. Furthermore, the first-instance court quite restrictively and incorrectly interpreted the circumstance related to discrimination when it determined that in the specific case there was no person, as a comparative sample, who under the same conditions as the plaintiff obtained a work permit from the defendant and was entered into the defendant's records for foreign citizens and persons without citizenship who are seeking employment or are employed in the Republic of North Macedonia. This is due to the fact that in the lawsuit itself it is requested to establish unequal treatment with other job seekers, regardless of whether they are citizens of the Republic of North Macedonia or foreigners, that is, putting the plaintiff in a disadvantageous position with a violation of the plaintiff's right in exercising his right to free access to a workplace/right to free access to the labor market. Namely, when the plaintiff has already legally acquired the right to establish an employment relationship, he is on the same level as all those who have this right in the country, hence the first-instance court completely unjustifiably limits itself to seeking a comparative sample of a foreigner who was entered into the records of the defendant for foreign citizens and for persons without citizenship who seek employment or are employed in the Republic of North Macedonia.
3. Filing of an appeal and adoption of the Appellate Judgment GŽ-610/22
Dissatisfied with the first-instance verdict, the plaintiff filed an appeal on 28.09.2021, refuting the first-instance verdict on three grounds, namely, essential violation of the provisions of the procedure, wrongly established factual situation and wrong application of substantive law, and the second-instance court is requested to cancel it the first-instance verdict and modify the verdict in a way that will approve the lawsuit in its entirety, or annul the first-instance verdict and send the case back for a new trial. In the submitted appeal, the plaintiff also states that the first instance court did not fully decide on the submitted claim and decided only on the claim related to establishing a violation of the right to equality, but not a violation of the right to free access to work and the labor market. The complaint also states that the plaintiff is discriminated against in comparison to others who have access to work. In continuation of the appeal, the plaintiff refers to the violation of a large number of legal provisions that the first-instance court misinterpreted and applied in the reasoning of the judgment. Acting on the complaint of the plaintiff, the Court of Appeal in Sopje on 02.03.2022 passed the verdict under number GŽ-610/22, which rejected the complaint filed by the plaintiff, and confirmed the first-instance verdict in its entirety. In the appellate judgment, the plaintiff obliges the defendant to compensate him for the costs in the appellate procedure in the total amount of 8,884 denars. If one examines the rationale of this judgment passed by the Court of Appeal in Skopje, it can be seen that the second-instance court structurally decided on all the prominent violations, but did not provide a sufficiently detailed and comprehensive explanation in which it states the reasons for the judgment passed. So, in this direction, in the section explaining the reason why the second-instance court considers that the allegations highlighted in the appeal for a substantial violation of the provisions of the procedure are unfounded, the appellate court simply states that the allegations are unfounded and that the first-instance verdict is clear and contains sufficiently reasoned reasons and decisive facts without specifying and citing where such a conclusion comes from. The same thing happens in the part of the allegations in the complaint that the first instance court did not decide in its entirety on the claim petition, where it is said as an explanation that the court decided within the framework of the set request without further explanation. In the part of the explanation of the appeal allegations about the wrongly established factual situation, the second-instance court literally states all the evidence from the first-instance procedure and states that according to them the factual situation was correctly derived by the fifth-instance court, but it does not stop specifically explaining the part of the injuries stated in the submitted appeal. The same type of reasoning that literally repeats several times the evidence presented by the first-instance court and repeats the allegations from the first-instance procedure without going into the specific violations stated in the complaint is also found in the part where the decision is made on the complaint allegations about the discrimination committed by a more serious form committed against the defendant. This part literally rewrites the part where the first-instance court finds that the Republic of North Macedonia has an obligation to directly apply the provisions of the international instruments, concluded and ratified in accordance with the Constitution of the RNM, which prohibit discrimination in the sense of the International Convention on the Abolition of All Forms of racial discrimination, The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the European Convention on Human Rights. Protocol 12 to the ECHR, the Framework Convention for the Protection of National Minorities within the EU. The directive for the implementation of the principle of equal treatment between persons, regardless of their racial or ethnic origin. The principle of prohibition of discrimination is a fundamental principle of the EU Treaty, which in its preamble states the connection to the principles of freedom, democracy and respect for human rights and fundamental freedoms, as well as the rule of law. Article 13 of the Treaty on the European Communities ensures the competence of the EU in relation to member states in the field of the fight against discrimination on the basis of, among other things, personal and social status. In the sense of the above, the principle of non-discrimination is established in the Constitution of RNM as one of the basic principles on which the highest zealous act is based. Namely, in art. 9 of the Constitution of the RNM stated that the citizens of the Republic of Moldova are equal in freedoms and rights, regardless of gender, race, skin color, national and social origin, political and relational belief, property and social position. From here, taking into account the above, as well as the mentioned legal provisions and international regulations, the court correctly determined that in the specific case, when exercising its legal powers, the defendant did not violate the plaintiff's right to equal treatment with any action he took. In the part of the appeal allegations for incorrect application of the substantive law, the Court of Appeals, as seen from the explanation of the judgment, did not even give a ruling and did not give an explanation, and ended the second-instance verdict simply by stating that the other appeal allegations were also subject to assessment, but the court found that they were without influence. for a different decision.