On the basis of Article 34 Paragraph 1 of the Act of the Constitutional Court of the Republic of North Macedonia (“Official Gazette of the Republic of North Macedonia” no. 115/2024), following the vote against Resolution U.no. 251/2024, by which the Constitutional Court, at the session held on 12 March 2025, initiated proceedings to review the constitutionality and legality of Part II “General Part” Item 5 Subitem 1 in the part “The ‘Total Resident Population’ is composed of the following persons – units of the Census” and Subitem 2 in the part “The ‘Total Non-resident Population’ is composed of the following persons – units of the Census” of the Methodology for the Preparation, Organisation and Conduct of the Census of Population, Households and Dwellings in the Republic of North Macedonia, 2021 (“Official Gazette of the Republic of North Macedonia” no. 30/2021), and following the vote against Decision U.no. 251/2024 of 25 June 2025, I hereby provide my written explanation.
SEPARATE OPINION
of Tatjana Vasikj-Bozadjieva LLM, Judge
At the session held on 12 March 2025, the Constitutional Court of the Republic of North Macedonia initiated proceedings to review the constitutionality and legality of Part II “General Part” Item 5 Subitem 1 in the part “The ‘Total Resident Population’ is composed of the following persons –units of the Census” and Subitem 2 in the part “The ‘Total Non-resident Population’ is composed of the following persons – units of the Census” of the Methodology for the Preparation, Organisation and Conduct of the Census of Population, Households and Dwellings in the Republic of North Macedonia, 2021 (“Official Gazette of the Republic of North Macedonia” no. 30/2021), and three months later, at the session held on 25 June 2025, decided to repeal the designated part of the Methodology.
With due respect for the majority of the judges, I must express my dissent from Resolution U.no. 251/2024 of 12 March 2025, whereby proceedings were initiated upon the initiative to review the constitutionality of the Methodology for the Preparation, Organisation and Conduct of the Census of Population, Households and Dwellings in the Republic of North Macedonia, 2021 (“Official Gazette of the Republic of North Macedonia” no. 30/2021), on the grounds that the initiative should have been rejected, since this bylaw act had already been exhausted in its application and procedural obstacles existed pursuant to Article 38 Indent 3 of the Act of the Constitutional Court of the Republic of North Macedonia (“Official Gazette of the Republic of North Macedonia” no. 115/2024), as well as for Decision U.no. 251/2024 of 25 June 2025 repealing Part II “General Part” Item 5 Subitem 1 in the part “The ‘Total Resident Population’ is composed of the following persons – units of the Census” and Subitem 2 in the part “The ‘Total Non-resident Population’ is composed of the following persons – units of the Census” of the Methodology for the Preparation, Organisation and Conduct of the Census of Population, Households and Dwellings in the Republic of North Macedonia, 2021 (“Official Gazette of the Republic of North Macedonia” no. 30/2021), on the grounds that, in the present case, the Court has exceeded its powers, given that it has limited competence to decide on the merits where the challenged act had already ceased to be part of the legal order at the moment the initiative was submitted, and in such circumstances, the Court may only adopt two decisions: to terminate the proceedings by resolution where the challenged act is already outside the legal order, or to adopt a decision establishing the unconstitutionality of a law, i.e., unconstitutionality and non-legality of a regulation or other general act in force at the relevant time, which ceased to be valid during the proceedings (before the Constitutional Court). Decision U.no. 251/2024 of 25 June 2025 constitutes a material decision of a constitutive character, which is formally and substantively inadmissible, given that repealing does not exist as a legal instrument in cases where the act is no longer in force, i.e. where it has been exhausted in its application. In such a case, only a declaratory finding of unconstitutionality is permissible, and only if strict procedural conditions are met (such as the cessation of validity during the proceedings), which was not the case here. One cannot “repeal” something that no longer exists. Therefore, any formal repeal of an act that is no longer valid constitutes a legal fiction and has no effective legal effect. Repeal with legal force means: from the moment of publication of the decision, the prescribed legal norm ceases to be valid. However, if it has already ceased to be valid, there is nothing left to “repeal” – the legal effect of that norm has already ended, it produces no effects and does not exist in the legal order.
I consider that the contested bylaw has been exhausted in its application, i.e. that it no longer produces legal effects, since the census has been completed, the data processed and published pursuant to the announcement of the State Statistical Office of 30 March 2022, and the Methodology has no permanent effect which would continue to apply after the conclusion of the census procedure.
✓ The legal nature and temporal effect of the Methodology
The Methodology subject to the initiative is a subordinate act of limited duration and applicability, linked exclusively to the conduct of the Census of 2021. It constitutes a technical framework providing instructions and definitions for the collection, processing and publication of data within a specific period of time.
Given that the census operation was completed in September 2021 and the results were published on 30 March 2022, the Methodology has been fully exhausted in its effect and no longer produces legal consequences.
In such cases, the Constitutional Court consistently applies the practice of rejection of initiatives due to the non-existence of a subject for constitutional review.
✓ On the limits of constitutional-judicial review and the purpose of proceedings
The Constitutional Court is not competent to exercise abstract legal review of acts which no longer have effect in reality and which do not produce current consequences for the constitutional order or for individual rights. Furthermore, conducting proceedings in situations where no legally relevant case exists is not only purposeless and inefficient, but may also generate legal uncertainty for institutions and citizens, particularly in relation to completed, concluded and statistically validated operations such as the census.
In this respect, the initiation of proceedings upon an initiative concerning a Methodology which regulated, in a highly technical and temporally limited manner, a fully executed statistical operation, represents a departure from established constitutional practice and an entry into abstract and unnecessary review of already concluded processes.
Therefore, pursuant to Article 38 Indent 3 of the Act of the Constitutional Court, I consider that the initiative should have been rejected, since there are no procedural conditions for conducting proceedings – there is no longer any legal effect, nor any constitutionally relevant subject matter.
✓ An initiative may be submitted only against a valid regulation
In the Republic of North Macedonia, the Constitution of the Republic of North Macedonia does not contain an explicit constitutional provision granting the Constitutional Court express competence to decide upon regulations which are no longer part of the legal order.
However, under the former Rules of Procedure of the Constitutional Court of the Republic of North Macedonia, and subsequently under the Act of the Constitutional Court of the Republic of North Macedonia, the Court has been granted authority to adopt a decision (when adopting decisions on the substance of the matter) establishing the unconstitutionality of a law, i.e., the unconstitutionality and non-legality of a regulation or other general act in force at the relevant time, which ceased to be valid during the proceedings (before the Constitutional Court), provided the conditions for its repeal are met (Article 70 Indent 6 of the Rules of Procedure of the Constitutional Court of the Republic of North Macedonia), or to adopt a decision (when adopting decisions on the substance of the matter) establishing the unconstitutionality of a law, i.e., the unconstitutionality and non-legality of a regulation or other general act in force at the relevant time, which ceased to be valid after the initiation of proceedings (before the Constitutional Court) (Article 72 Indent 6 of the Act of the Constitutional Court of the Republic of North Macedonia). In contrast to such a decision based on the substance of the matter, the Constitutional Court of the Republic of North Macedonia may adopt a resolution to terminate the proceedings if, during the proceedings (before the Constitutional Court), the law, other regulation or general act has ceased to be valid, and the Court does not find grounds to review their constitutionality, or constitutionality and legality, at the time of their validity (Article 47 Indent 1 of the Rules of Procedure of the Constitutional Court of the Republic of North Macedonia, and Article 39 Indent 1 of the Act of the Constitutional Court of the Republic of North Macedonia). There is no provision governing the situation in which an initiative is submitted against a law, regulation or other general act which, at the moment of submission, was already outside the legal order.
Due to this normative arrangement of the competence of the Constitutional Court of the Republic of North Macedonia, the Court’s constitutional case-law has consistently upheld the position that an initiative submitted against a law, regulation or other general act which is outside the legal order shall be rejected by resolution, on the grounds of the existence of other procedural obstacles to deciding upon the initiative, and this applies in cases where an initiative has been submitted against a law, regulation or other general act which, at the moment of submission, was already outside the legal order or ceased to be valid during the proceedings before the Constitutional Court. The Court relies on Article 38 of the Act of the Constitutional Court of the Republic of North Macedonia, which determines the cases in which the Court dismiss an initiative, including situations where other procedural obstacles to deciding upon the initiative exist. Previously, the Court relied on Article 28 Indent 3 of the Rules of Procedure of the Constitutional Court of the Republic of North Macedonia, which contained precisely the same content. The type of act by which the Court dismisses initiatives is prescribed in Article 73 Indent 3 of the Act of the Constitutional Court of the Republic of North Macedonia, namely, by resolution (when not adopting decisions on the substance of the matter). The same provision was contained in Article 71 Indent 3 of the Rules of Procedure of the Constitutional Court of the Republic of North Macedonia. However, there is no provision regulating what constitutes “other procedural obstacles to deciding upon the initiative.”
In the present case concerning the initiative against the Methodology, the Court did not act in accordance with the Act of the Constitutional Court of the Republic of North Macedonia, nor did it apply the relevant provisions. The Methodology was adopted in 2021, whereas the initiative challenging the Methodology was submitted on 29 October 2024. This means that, at the time of submission of the initiative, the Methodology as a contested act was already outside the legal order. The Court adopted a resolution to initiate proceedings, although the Methodology was of a temporal character, exhausted in its application and therefore outside the legal order, instead of adopting a resolution to dismiss the initiative on the grounds of “the existence of other procedural obstacles to deciding upon the initiative,” as is reflected in the dominant constitutional-judicial case-law and the relevant provisions of the Act of the Constitutional Court. Furthermore, the Court acted beyond its competence by adopting a decision with the following dispositive “Part II ‘General Part’ Item 5 Subitem 1 in the part ‘The “Total Resident Population” is composed of the following persons – units of the Census’ and Subitem 2 in the part ‘The “Total Non-resident Population” is composed of the following persons – units of the Census’ of the Methodology for the Preparation, Organisation and Conduct of the Census of Population, Households and Dwellings in the Republic of North Macedonia, 2021 (‘Official Gazette of the Republic of North Macedonia’ no. 30/2021) ARE REPEALED,” given that the Court may only adopt two decisions: to terminate the proceedings by resolution where the contested act is outside the legal order, or to adopt a decision establishing the unconstitutionality of a law, i.e., the unconstitutionality and non-legality of a regulation or other general act in force at the relevant time, which ceased to be valid during the proceedings (before the Constitutional Court).
✓ Can the Constitutional Court exercise constitutional-judicial review over legal provisions outside the legal order? Does there exist constitutional competence over a non-existent provision? When the object of constitutional review does not exist: judicial activism or violation of procedural guarantees? Deciding on initiatives with an exhausted subject-matter: judicial hyperactivity or constitutional necessity? Expansion of constitutional-judicial competence through practice: a silent revision of Article 38 Indent 3, Article 72 Indent 1 and Indent 6 of the Act of the Constitutional Court?
The analysis of the conduct of the Constitutional Court of the Republic of North Macedonia in the specific case concerning the initiative against the 2021 Methodology reveals a serious and legally impermissible departure from the positive normative framework and the established constitutional-judicia case-law. According to the applicable internal acts governing the procedural functioning of the Constitutional Court, above all, the Act of the Constitutional Court of the Republic of North Macedonia, it follows unequivocally that the Court has a limited competence when adopting decisions on the substance of the matter in situations where the contested act is already outside the legal order at the moment of submission of the initiative.
Article 72 Indent 6 of the Act permits a decision on the substance of the matter (a finding of unconstitutionality or non-legality), but only if the contested provision ceases to be valid after the initiation of proceedings, which is not the case with the Methodology that ceased to be valid before the initiative was submitted (on 29 October 2024). From this it follows unambiguously that the Court should not have entered into a substantive review of the provision, but was obliged to act in accordance with Article 39 Indent 1 of the Act and to dismiss the initiative on the ground of “the existence of other procedural obstacles”.
According to the established case-law, as well as Article 38 of the Act, initiatives submitted against provisions that are no longer part of the legal order (particularly if this is the case even before the proceedings are initiated) are deemed procedurally inadmissible, thereby obliging the Court to adopt a resolution of dismissal rather than a decision on the substance of the matter. The decision adopted by the Court with the operative part “Part II is annulled…” constitutes a substantive decision of a constitutive nature which is formally and substantively impermissible, bearing in mind that repeal does not exist as an instrument in law in cases where the act is already no longer in force, i.e. it has been exhausted in its application. In such a case, the only permissible course is a declaratory finding of unconstitutionality, provided that strict procedural conditions are met (such as cessation of validity during the proceedings), which is not the case here.
In cases where a provision has already ceased, the Constitutional Court may only determine that it was unconstitutional, thereby producing a declaratory effect, not a constitutive one. This means that it does not repeal it (since there is nothing to repeal), but establishes its unconstitutionality due to consequences such as possible revision of acts adopted on its basis, the protection of constitutional order, and legal certainty for the future. Repeal does not have retroactive effect. The Court’s decision cannot “erase” the existence of a norm that has already ceased to be valid. Instead, it may only be declared that it was unconstitutional while it was in force.
The repeal of a non-valid provision is a legal fiction – a formally and legally impossible act, because what is being repealed is a norm that no longer exists in the legal order. Instead, the Constitutional Court may review its constitutionality for the sake of consequences and principles, but not to “repeal” it. It is legally impossible to “repeal” a provision which is already invalid (i.e. has exited from legal force), since repela only makes sense for provisions that are in force at the time of decision-making. Repeal with legal force means: from the moment of publication of the decision, the prescribed legal norm no longer applies. But if it no longer applies, there is nothing to “repeal” – the legal effect of that norm has already ceased, it produces no further effects and no longer exists in the legal order.
The repeal of a provision that is no longer in legal force is legally impossible, as repeal presupposes the existence of a valid legal provision producing legal consequences at the moment of decision-making. When a provision is already outside the legal order – whether due to expiry, cessation of application, or repeal by another body – it no longer produces legal consequences and cannot again be subjected to constitutional review for the purpose of repeal. In such cases, the Constitutional Court may only establish its unconstitutionality, thereby producing a declaratory and not a constitutive effect. This means that the contested norm is not repealed, but confirmed as having been contrary to the Constitution while it was in force. By this, the Court contributes to the strengthening of constitutional order, but it cannot “repeal” something that no longer exists. Therefore, any formal repeal of a non-valid provision constitutes a legal fiction and has no effective legal effect.
By failing to apply Article 72 Indent 6 of the Act, and instead applying Article 72 Indent 1 of the Act and proceeding as if a valid provision existed when in fact it did not, the Court created a legal fiction of the existence of an act which was already a “dead” legal provision, which is contrary to the principle of legal certainty and the prohibition of decision-making ultra vires. Furthermore, by adopting a decision instead of a resolution, the Court directly violated Article 73 Indent 3 of the Act, which explicitly prescribes that in such cases a resolution must be adopted, not a decision, since the substance of the matter is not to be a matter of decision-making.
Although the Methodology may indeed have contained contentious elements, the right of the Court to enter into its substance ended at the moment when it ceased to be valid before the initiative was submitted. By disregarding this, the Court committed a legal error in the interpretation of its own competences, in the form of a violation of the principle of legality in its own procedure.
Ultimately, such conduct establishes a very dangerous precedent: the Constitutional Court positions itself as an institution that defines the limits of its own competence outside the positively established rules, which is contrary to the very nature of constitutional judiciary as a body of strictly defined authority. The disregard of internal acts, moreover, is not merely a benign or inadvertent mistake, but a violation of the principle of legal certainty, of trust in institutions, and of the impartiality of the Constitutional Court, which may have long-term consequences for the legitimacy of the Court as guardian of the constitutional order. The conclusion is clear and unequivocal: the Constitutional Court must not have entered into a substantive review of the Methodology, since at the time of the initiative it was already outside the legal order, and by doing so, the Court exceeded its competence, misapplied positive law, and adopted a decision of legally invalid form and content.
The principle of legality, as an element of the rule of law, binds every state authority, including the Constitutional Court, even though it is an institution with a special constitutional status (sui generis). The Court must act strictly in accordance with its constitutional competences (Article 110 of the Constitution) and with the Act of the Constitutional Court, which regulates the procedural aspect of its functioning. Initiating proceedings for the review of constitutionality of an act already outside the legal order and not producing legal consequences, contrary to Article 38 Indent 3 of the Act, would mean an overstepping of the competences of the Court. Such conduct is not only legally disputable, but also undermines legal certainty and public trust in the institution, thereby eroding the principle of the rule of law.
✓ A call for constitutional intervention following the example of the Republic of Croatia
I am “in favour” – in favour of the Constitutional Court having constitutional and statutory authority to decide also on provisions that are already outside the legal order, particularly when they have left consequences or continue to have repercussions for the constitutional order and human rights. However, for such competence to be legitimate and incontestable, it must be clearly established within the constitutional framework itself. For this reason, I advocate – clearly, openly, and responsibly – for an amendment of the Constitution, for the adoption of a special Law on the Constitutional Court, which would precisely regulate this issue, and for a corresponding amendment of the Act governing the work of the Court. Only in this way will a clear boundary be secured between legally established competence and potential arbitrariness, thereby strengthening the legitimacy and public trust in the Constitutional Court.
I am in favour of the existence of clearly defined, transparent, and publicly promulgated rules in written form, which would regulate the practice and internal procedure of the Constitutional Court – similar to the way this is regulated in the legal order of the Republic of Croatia. Such rules are essential for ensuring legal predictability, transparency, and equal treatment in similar cases. For as long as such established rules do not exist, any extension of the competence of the Court based on internal criteria or ad hoc assessments may rightly be considered arbitrary and capricious conduct, contrary to the principle of the rule of law.
The question of whether a constitutional court may repeal a legal provision which, at the time of submission of the initiative or at the time of the decision-making, is already outside the legal order or exhausted in its application, forms part of a broader constitutional-judicial doctrine concerning the subject-matter of constitutional review and the need to protect the constitutional order even after the formal cessation of effect of the legal provision.
Such an express competence exists in the Constitutional Court of the Republic of Croatia.
“The competence of the Constitutional Court in our constitutional-legal system is determined exclusively by basic norms. These are contained in the Constitution of the Republic of Croatia and in the Constitutional Act on the Constitutional Court of the Republic of Croatia. The Constitution of the Republic of Croatia was promulgated on 22 December 1990 and with amendment remains in force today. According to the original text of the so-called ‘Christmas Constitution’, the competences of the Constitutional Court relating to abstract constitutional review of general acts were: deciding on the conformity of applicable laws with the Constitution, as well as deciding on the conformity of other applicable regulations with the Constitution and with the law. The sanction for an established inconsistency of a general act with a norm of higher rank was the annulment of the unconstitutional regulation.
Following the second amendment to the Constitution, which occurred towards the end of 2000, the competences of the Constitutional Court were substantially broadened. Among other things, with that amendment the Court acquired the competence to review the constitutionality of laws, as well as the constitutionality and legality of other regulations which had ceased to be valid, provided that no more than one year had elapsed between the day of cessation of their validity and the submission of the request or proposal to institute proceedings. In such a case, the existence of inconsistency between norms of different rank leads to the adoption of a decision declaring the unconstitutionality or non-legality of the general norm.” Dr Dubravko Ljubić, The nature of the proposal under Article 38 of the Constitutional Act on the Constitutional Court of the Republic of Croatia, Collection of Papers of the Faculty of Law in Split 51, no. 4 (2014): 795–812.
The competences under Article 129 Paragraph 1 Indent 3 and Article 131 Paragraph 3 of the Constitution of the Republic of Croatia, which enable the Constitutional Court to decide on the constitutionality and legality of regulations that are no longer in force, represent a feature not universally accepted across all European constitutional systems. These provisions reflect the specific Croatian model of constitutional justice, which combines elements of abstract review of constitutionality and protection of the objective constitutional order, even retroactively.
Article 129* Paragraph 1 Indent 3 of the Constitution of the Republic of Croatia empowers the Constitutional Court to review the constitutionality and legality of laws and other regulations which are no longer in force, but only if no more than one year has passed since their cessation. This provision is an important instrument for the protection of constitutionality and legal certainty, as it allows the Court to rule also on regulations which, although no longer applicable, may have caused constitutional violations whilst they were in force. In this way, institutional silence regarding unconstitutional norms is prevented, and symbolic as well as legal rehabilitation of violated rights is made possible. However, the time-limit of one year functions as a restriction serving to protect legal certainty and to prevent endless revisiting of regulations which no longer produce legal consequences.
* Article 129 of the Constitution of the Republic of Croatia: https://narodne-novine.nn.hr/clanci/sluzbeni/2010_07_85_2422.html
The Constitutional Court of the Republic of Croatia:
– decides on the conformity of laws with the Constitution;
– decides on the conformity of other regulations with the Constitution and with the law;
– may review the constitutionality of laws, as well as the constitutionality and legality of other regulations which have ceased to be valid, provided that no more than one year has passed from the cessation of their validity to the submission of the request or proposal to institute proceedings;
– decides on constitutional complaints against individual decisions of state authorities, bodies of units of local and regional self-government, as well as legal entities vested with public authority, where such decisions have violated human rights and fundamental freedoms, as well as the right to local and regional self-government guaranteed by the Constitution of the Republic of Croatia;
– monitors the implementation of constitutionality and legality and reports to the Croatian Parliament on identified instances of unconstitutionality and illegality;
– resolves conflicts of competence between the legislative, executive, and judicial authorities;
– decides, in accordance with the Constitution, on the responsibility of the President of the Republic;
– supervises the constitutionality of the programmes and activities of political parties and may, in accordance with the Constitution, prohibit their work;
– supervises the constitutionality and legality of elections and of the state referendum and resolves electoral disputes not within the competences of the courts;
– performs other tasks determined by the Constitution.
Article 131 Paragraph 3** of the Constitution of the Republic of Croatia complements this mechanism by imposing an obligation on the Constitutional Court, in the cases under Article 129 Paragraph 1 Indent 3, formally to establish that a law was unconstitutional or that a subordinate regulation was unconstitutional or non-legal. This means that even when a regulation is no longer in force, if a timely proposal or initiative is submitted, the Court must adopt a decision clearly declaring the inconsistency with the Constitution or with the law. This formal finding carries legal weight: it serves to reaffirm the constitutional order, prevents justification of past violations, enables subsequent accountability of holders of public authority, and creates orientation for future legal practice. Together, these two provisions underline the role of the Constitutional Court not only as an institution reacting to current disputes but also as guardian of constitutionality across time – even after the formal cessation of validity of contested regulations. In this way, the Constitutional Court assumes the role of the institutional conscience of the state, not allowing constitutional violations to remain unaddressed merely because they were short-lived or no longer applied.
** Article 131 of the Constitution of the Republic of Croatia: https://narodne-novine.nn.hr/clanci/sluzbeni/2010_07_85_2422.html
The Constitutional Court of the Republic of Croatia shall repeal a law if it finds it unconstitutional.
The Constitutional Court of the Republic of Croatia shall repeal or annul another regulation if it finds it unconstitutional or non-legal.
In the cases under Article 129 Paragraph 1 Indent 3 of the Constitution, if the Constitutional Court of the Republic of Croatia establishes that a law was not in conformity with the Constitution or that another regulation was not in conformity with the Constitution and the law, it shall adopt a decision determining the unconstitutionality or non-legality.
Regrettably, such a constitutional and, more broadly, normative framework for this competence of the Constitutional Court of the Republic of North Macedonia does not exist. Hence, it is justified to consider a constitutional intervention or amendment that would make possible the establishment of a model similar to the Croatian one, whereby the Constitutional Court would be empowered to proceed also on provisions that had ceased to be valid prior to the submission of an initiative for review of their constitutionality and legality, with a view to ensuring full protection of constitutionality and continuity in the rule of law.
Such competences exist also in other constitutional courts, though not in their entirety and not in the same manner.
Republic of Germany (Bundesverfassungsgericht)
- The German Constitutional Court does not possess formal competence to decide on the constitutionality of a statute that has already been repealed (invalid), except where the consequences of that statute still affect individuals or where it continues to be applied in pending proceedings.
- The principle of actuality (Aktualitätsprinzip) is well established in German constitutional practice and means that the Court decides only when there exists an actual and concrete dispute. The Aktualitätsprinzip represents a fundamental legal principle whereby courts, including constitutional courts, should decide only on legal acts and situations that are current and valid at the time of decision-making. This principle safeguards the right to legal certainty and prevents abstract adopting decisions without concrete legal consequences, confining the competemce of courts strictly to relevant and ongoing legal issues. In practice, this means that the Constitutional Court does not have the competence to review the constitutionality or legality of provisions that have already ceased to be in force, unless there exist continuing consequences or violations of rights that remain current. This principle is essential for the protection of legal certainty and stability, it prevents abstract and theoretical deciding without practical legal effect, and it limits the competence of the courts to concrete, relevant, and ongoing legal matters.
- The concept of “permanent violation” (dauerhafte Beeinträchtigung) has been developed, particularly in the field of human rights protection, and may allow judicial review to continue even where the act has formally ceased to be valid. “Dauerhafte Beeinträchtigung” in German means “permanent injury” or “permanent damage”. In a legal context, it refers to a situation where a right or interest has been violated or impaired in a way that the consequences are not temporary, but long-lasting or permanent in nature. In constitutional judiciary, the term is frequently invoked to justify the examination of a constitutional complaint or initiative even after the cessation of a particular provision or act, provided that the harm or violation caused by it continues to exist and requires legal protection.
Republic of Slovenia
Article 47 of the Constitutional Court Act of Slovenia*** permits constitutional review of laws that have ceased to be in force, but only if their consequences are still persisting or if such review is necessary for the protection of human rights.
*** https://pisrs.si/Pis.web/pregledPredpisa?id=ZAKO325&utm_source=chatgpt.com
„47. clen (1) Ce se z zahtevo ali s pobudo izpodbija predpis ali splošni akt, izdan za izvrševanje javnih pooblastil, ki v èasu vložitve zahteve ali pobude ne velja veè, niso pa bile odpravljene posledice njegove neustavnosti oziroma nezakonitosti, ustavno sodišèe odloèi o njegovi ustavnosti oziroma zakonitosti. Pri podzakonskih predpisih ali splošnih aktih, izdanih za izvrševanje javnih pooblastil, ustavno sodišèe odloèi, ali ima njegova ugotovitev uèinek razveljavitve ali odprave. (2) Èe je med postopkom pred ustavnim sodišèem predpis ali splošni akt, izdan za izvrševanje javnih pooblastil, v izpodbijanem delu prenehal veljati ali je bil spremenjen ali dopolnjen, ustavno sodišèe odloèi o njegovi ustavnosti oziroma zakonitosti, èe predlagatelj ali pobudnik izkaže, da so izpolnjeni pogoji iz prejšnjega odstavka.“
Article 47(1)
If a request or initiative challenges a regulation or a general act issued for the exercise of public authority which, at the time of submission of the request or initiative, is no longer valid, but the consequences of its unconstitutionality or illegality have not been eliminated, the Constitutional Court shall decide on its constitutionality or legality. With respect to subordinate regulations or general acts issued for the exercise of public authority, the Constitutional Court shall decide whether its finding has the effect of repeal or annulment.
(2) If, during proceedings before the Constitutional Court, the regulation or general act issued for the exercise of public authority ceases to be valid or is amended in the contested part, the Constitutional Court shall decide on its constitutionality or legality if the applicant or initiator demonstrates that the conditions of the previous paragraph are fulfilled.
Republic of Austria
- In Austria, the Verfassungsgerichtshof does not decides cases concerning laws that are no longer in force, since that would be contrary to the principle of legal certainty and the prohibition of abstract review without concrete legal effect (Verbot der abstrakten Normenkontrolle). The “Verbot der abstrakten Normenkontrolle” is a legal principle according to which the constitutional court has no jurisdiction to review the constitutionality or legality of legal norms in an abstract, theoretical vacuum, i.e. without a concrete and current case justifying such review. This principle arises from the requirement that judicial decisions must be based on real and concrete legal disputes, in order to avoid unnecessary and excessive control of provisions which are no longer valid or which produce no current legal effect. In relation to the question of whether the Constitutional Court may review provisions that are no longer valid, this principle means that such review is limited only to situations where the provision, despite having ceased to be in force, produces lasting legal consequences or violations that remain current. Otherwise, the Constitutional Court must refrain from substantive review and dismiss the initiative as procedurally inadmissible, thereby safeguarding legal certainty and the principle of the legitimacy of judicial power. This position is supported in many legal systems and in constitutional practices, including that of Germany and Slovenia.
- The Court insists upon the existence of a “live dispute” (Reale Streitigkeit). The term “Reale Streitigkeit” denotes a concrete, real, and current legal dispute which is a precondition for courts, particularly constitutional courts, to adopt decisions on a given matter. The concept is closely connected with the principle of actuality and with the prohibition of abstract review of normative acts (Verbot der abstrakten Normenkontrolle), according to which the Court may intervene only when there is a genuine and present dispute justifying its decision, and not in circumstances of theoretical or hypothetical debate. The absence of a “Reale Streitigkeit” excludes the competence of the Court to decide, thereby safeguarding legal certainty and avoiding unnecessary adjudication.
In sum, the Croatian constitutional model is among the few in Europe which expressly recognises and regulates “retroactive” constitutional review, i.e. the revire of the constitutionality and legality of acts that are no longer valid, whereby such review fulfils an important legal-political function: to demonstrate that the system acknowledges a violation of the Constitution even where there is no longer any formal legal effect, thus enhancing citizens’ trust in institutional oversight.
In the Macedonian constitutional-judicial system, as in most comparative systems, the principle applies that the Court does not decide on acts which are legally non-existent or exhausted, save for rare exceptions where: the provision continues to produce effects, the act has left lasting consequences affecting rights, and there is a legitimate interest in establishing constitutionality.
✓ Misinterpretation of the Decisions of the Constitutional Court
Finally, I consider it necessary to emphasise that Decision U.no.251/2024 of 25 June 2025 of the Constitutional Court (which in my view was adopted in excess of the competences of the Constitutional Court and is formally and substantively inadmissible, given that repeal does not legally exist as an instrument in cases where the act is already no longer in force, i.e. exhausted in its application), by which parts of the Methodology for the Census were repealed, does not mean that the categorisation of resident and non-resident population as such is in dispute. On the contrary, the Court explicitly clarifies that this is an expert matter. It does not state that the categorisation of resident and non-resident population is unconstitutional, but rather that it is unconstitutional for such a matter to be regulated by the Director of the State Statistical Office without express statutory authorisation. In constitutional-legal terms, the issue is not the content, but the form: the legal regulation of essential categories of the population, which are connected with rights and obligations, must be regulated by law or on the basis of clear statutory authorisation.
Claims that the Constitutional Court repealed the “census of the diaspora” are manipulative and contrary to the actual legal substance of the Decision. All commentaries presenting Decision U.no.251/2024 of 25 June 2025 of the Constitutional Court as a decision to repeal the enumeration of the non-resident population (the diaspora) are legally unfounded and lead to the misuse of legal reasoning for political purposes.
The Constitutional Court did not repeal categories of data, but pointed out that the constitutional order does not allow essential legal determinants to be established by a subordinate act without a concrete statutory basis. This cannot be regarded as “annulling something which is already no longer in force”, but rather as a clear institutional message that even temporarily valid subordinate acts must be adopted in conformity with the Constitution and the law.
The Decision of the Constitutional Court conveys a fundamental constitutionally legal message to the Assembly and the Government: that in regulating matters which touch upon essential categories of population, particularly where such categories have potential implications for the exercise of rights or obligations, it is necessary to act strictly within the Constitution, i.e. through a law or on the basis of clear and unambiguous statutory authorisation. This means that the Assembly, as the legislative authority, is obliged to regulate these matters precisely by law, whereas the Government and its bodies, as the executive authority, may adopt bylaws only where such power is explicitly provided for by law. In this, the Court insists on respect for the separation of powers and for the principle of legality in the operation of state authorities.
Tatjana Vasikj-Bozadjieva LLM, Judge