Types and legal effect of decision

a) The Constitution in fact determines types and legal effect of Constitutional Court decisions; however, the Rules of Procedure determines some significant aspects of the legal effect.

According to the Constitution, the Constitutional Court shall annul or repeal a law if it is not in conformity with the Constitution, or it shall annul or repeal other regulation not in conformity with the Constitution or law. The Constitutional Court decisions are final and executive. With these constitutional provisions, the principle of the constitutionality and legality, as well as the obligation to respect the Constitution and laws, is consistently realized. Undoubtedly, the Constitution entrusts the Court decisions a supreme authority and is binding for all legal subjects they refer to and no legal means are permitted against them.

Constitutional Court reaches a decision when deciding on the essence of the matter pertaining to any issue of its competence. The Court makes resolutions and reaches conclusions for certain procedural issues.

1. The repealing and annulling Constitutional Court decisions, related to the basic type of competence, are the basic type of decisions – control of the constitutionality and legality of normative acts. The repealing and annulling of normative acts depends on the Court’s evaluation of the seriousness of the consequences if unconstitutional i.e. unlawful normative act is applied. Within the framework of these decisions, there is a so called declaring decision on unconstitutionality during the time of a valid normative act which ceased to be in force during the procedure. The Court may make this decision on unconstitutionality of a valid act only if there are reasons for the act to be annulled were it still valid.

Common characteristic of the decisions repealing or annulling normative acts or declaring unconstitutionality or illegality during the time of validity is their erga omnes effect. Otherwise, Court decisions activate legal effect upon their publication in the “Official Gazette of the Republic of Macedonia”.

The legal effect of the repealing decisions is ex nunc, meaning that the repealed normative act is only eliminated from the legal system, but the Court decision does not give grounds for intervention in individual acts and relationships arising from its application before the repeal. Yet, enforcement of individual acts brought upon an normative act which has been repealed by Court decision, shall not be allowed, and have the enforcement already started, it shall be terminated.

The annulling effect of the decision is ex tunc and aims not only to eliminate the unconstitutional or unlawful normative act from the legal system, but also to allow the possibility for changing individual act brought upon it, at any time from the day it has entered into force. The retroactive effect of the repealing decision is conditioned with presenting the legal interest of the subjects in changing individual acts within six months after the day of the publication of the Court decision and the organ that issued it has the duty to change it.

2. A decision by virtue of which the Constitutional Court decides on the competence conflict among certain organs is another type of decision and it only determines the organs responsible to decide on certain legal matters. Its effect is limited to the organs involved in competence conflict as well as to any entity not being able to exercise certain right or interest in particular matter due to the conflict.

3. Decisions on protection of freedoms and rights violated by individual act or action determine whether there is violation of freedoms and rights and, dependent on this, the Court shall either annul the individual act, that is forbids the action, or deny the request. The effect of the decision is inter partes. In the decision, the Court shall determine the manner the consequences will be eliminated from the application of individual acts.

4. Decisions on accountability of the President of the Republic and the conditions that cease his/her office have determining character and their consequences are determined with the Constitution as referred in chapter IV.

b) As stated, the Court makes procedural resolutions as well. Thus, the Court decides on commencing procedure for evaluating the constitutionality and legality of a normative act upon submission of initiative, for ceasing a procedure, for rejecting initiative, etc. It is worth mentioning that, resolutions by which the Court decides not to commence a procedure declare the Court’s evaluation of the conformity of the challenged normative act with the Constitution, i.e. law, which makes the resolution not only a procedural act, but also an act of meritorious decision. A rather distinctive resolution is the one by which the Court decides, during the procedure, to ban the enforcement of individual acts and actions brought or undertaken upon normative act whose constitutionality and legality is challenged before the Court. This resolution is in effect up till the final decision on constitutionality and legality is reached. The criteria for its reaching is the Court’s evaluation of the occurrence of serious consequences difficult to repair. Regarding the suspending effect of this type of resolution, the Court is especially cautious when it evaluates the conditions for its making.

c) Although the Constitutional provisions, according to which Constitutional Court decisions are final and executive, do not need additional support, yet, execution of Court decisions is a matter which, as in other countries, is not solely entrusted to the will of the subjects in the legal system. According to the Rules of Procedure, the Constitutional Court follows the execution of decisions and, if necessary, may ask the Government to safeguard the execution. The duty for executing a decision rests primarily with the maker of the repealed or annulled act. When the issue is repealing or annulling normative acts, the Court decision is, by nature, self-executive so to say – the normative act is no longer in the legal system and every reference to it, while deciding on certain cases, is simply an illegality. Greater problems may occur, and have occurred in practice, when the act maker creates an act with the same content, or when the organs do not respect the consequences of the repealing or annulling decision on individual acts which are to be changed or whose execution is to be banned. If the latter is the case, the Government may secure effectiveness in enforcing Court decisions; however, the problems are not that simple when the Government would avoid execution of the decision by introducing a new act with the same content as the repealed or annulled one.

Yet in practice, the problems with execution of Court decisions are exception which, however, must not be underestimated.