The Commission for Protection against Discrimination Refuses to Recognize Milenko Nedelkovski’s Discriminatory Speech 06 December 2016
The Network for Protection against Discrimination strongly reacts to Opinion no. 08- 1651/1 issued by the Commission for Protection against Discrimination upon the complaint of the Agency for Audio and Audiovisual Media Services filed against journalist Milenko Nedelkovski for discrimination based on sexual orientation and gender identity in his show “Milenko Nedelkovski Show” on the Kanal 5 television.
The Opinion of the Commission for Protection against Discrimination, despite formal deficiencies, also shows lack of basic knowledge of the Law on Prevention and Protection against Discrimination and a false interpretation of its provisions. Hereinafter, we’ll try to single out the most serious shortcomings. In its opinion, the Commission states that a discriminator should have a superior position in order to be able to discriminate against a particular group. The Law on Prevention and Protection against Discrimination does not contain such a provision, nor does it stipulate specific features that a person should possess in order to be considered a discriminator. The law is quite clear in Art. 5, paragraph 4 which defines discriminatory behavior and it has nothing to do with "superiority of position" of the potential discriminator.
It is interesting how the Commission determines the areas of application of the Law on Prevention and Protection against Discrimination. In the Opinion, the Commission claims that discrimination in the field of public informing and media refers to media as legal entities, but not to journalists working for private projects (?!).This statement seems as a frivolous and an approximate interpretation of laws of the Republic of Macedonia for the purpose of finding arguments in Milenko Nedelkovski’s defense. With this decision, the new formation of the Commission openly disrespects the decisions of the previous formation, which recognized discriminatory speech based on sexual orientation and gender identity containing elements of hate speech in two decisions. Throughout the entire text of the Opinion, the Commission for Protection against Discrimination is trying to present the discriminatory and hate speech as the "the author’s opinion" and freedom of speech, thus failing to make a distinction between these two terms.
Perhaps most worrying is that the Opinion leads us to the conclusion that the author, who is one of the commissioners of the Commission for Protection against Discrimination, has no knowledge of the sources of law, of what they stand for, of how they are to be applied, and therefore no knowledge of how the legal system works. Even if the author of the Opinion is not an attorney, because not all commissioners are attorneys, the Commission’s President Aleksandar Dashtevski is in fact an attorney, and he signed the Opinion which he should have corrected.
Namely, the Commission states that “there is no need of quoting Art. 14 of the European Convention on Human Rights because it is implemented in our legislation, especially in our law which is believed to contain higher standards than those provided for in international documents”. We’d like to point out that the Constitution of the Republic of Macedonia stipulates that international treaties ratified by the Constitution are part of the internal legal order and cannot be changed by law. From the text of the Opinion, it appears that the Commission considers that citizens cannot refer to the decisions of the European Court of Human Rights, because unlike the Court, the Commission is a quasi-judicial body, which again points to the lack of knowledge of the sources of law.
As a Network for Protection against Discrimination we express serious concern about lack of knowledge, erroneous application and false interpretation of the Law on Prevention and Protection against Discrimination demonstrated by the Commission for Protection against Discrimination. We call on the Commission for Protection against Discrimination to start with proper and full implementation of the Law on Prevention and Protection against Discrimination and the handling of submitted complaints should be in accordance with the legal provisions, and not with subjective interpretations.