The President of the Constitutional Court, Darko Kostadinovski LLD, appeared as a guest on the podcast “Where Is the Money?”, where he discussed current issues related to the work of the Constitutional Court, cases of high public interest, and the priorities of his mandate.
With regard to the case challenging Article 218 of the Law on Enforcement, which concerns the ability of individuals and legal entities to recover debts from state and local authorities, Kostadinovski stated:
“I am very pleased that we have initiated proceedings in this case. Five years ago, this same Court examined Article 218 under a different initiative. At that time, although it is no secret that within that composition Judge Osman Kadriu and I expressed serious doubts about the constitutionality of this provision, the majority decided—so as to avoid significant consequences for the State—to take a more lenient approach. Now, proceedings have been initiated concerning Article 218. From the very example provided by the applicant, it is clear that this is an unconstitutional provision. He provides two examples: an employee of a municipal enterprise acquires the right to a pension, while another employee does not, because the enterprise failed to pay contributions. The employee sues the municipality, obtains a final judgment, and is unable to enforce it—precisely due to the existence of Article 218. This is an extremely vague and imprecise provision, even introducing a legal standard such as ‘necessary for the performance of activities’, while in paragraph two it grants discretionary power to the president of the court to determine which assets are necessary for such activities. It is very poorly drafted. We understand the intention of the legislator—we know what was sought to be achieved. There is a public interest, as these are public enterprises for waste management, water supply, and so forth. However, when I read that the debt of public enterprises amounts to €200 million, those are not virtual funds—those are someone’s money, funds that are being claimed.”
He added that such a decision would improve financial discipline and increase accountability of public enterprises:
“This decision will have an impact on financial discipline and on greater accountability of public enterprises. No reasonable justification can be found. The performance of these enterprises depends on the capability of their management. Property rights and claims—especially those confirmed by final judgments—constitute property rights protected by the Constitution and represent a fundamental value of our legal order. These are citizens’ rights and may be restricted only in a state of emergency or war, not in this manner. Those €200 million belong to companies that also need to pay their employees.”
When asked whether there could be pressure from the executive branch regarding such an important law, Kostadinovski categorically rejected such claims:
“I receive no such calls, and even without external influence, when adopting our decisions we are obliged to consider all circumstances and their effects on citizens’ rights. No one needs to tell us—we are duty-bound to assess. We consider all circumstances: what our decision will mean for the legal order and for the Budget. I am against blocking all public enterprises, but anyone who undertakes to manage a public enterprise must be accountable. There will likely need to be a transitional period for our decision to take effect.”
Regarding the application of the Law on Obligations, following the Court’s annulment of amendments last year, Kostadinovski stated:
“The provision introducing a five-year limitation period was applied for approximately one year. During that period, all claims that reached five years became time-barred and can no longer be enforced. The issue that arises is whether our annulment decision revives the previous legal rule. It is an annulment, not an invalidation. In my legal view, only if an entire law is invalidated does the previous rule come back into force—that is the effect of invalidation. Here, however, we have an annulment. We are not competent to determine the effects and application, but I must emphasise that, just like the legislator, overly frequent legal changes create legal uncertainty and unpredictability. The same applies to our decisions, which carry legal effects and characteristics similar to laws.”
When asked whether the jurisdiction of constitutional courts should be expanded to assess conflicts between laws, he responded:
“This is one of my favourite topics. In my eight years as a judge, there has hardly been a session where such a dilemma—what we call a ‘collision of laws’—has not arisen. My personal view, and I am pleased that the Court has recently begun to accept this competence, is that although it is not explicitly stated, the Constitutional Court, in protecting fundamental values, cannot remain passive when faced with clear cases of conflicting provisions that may be applied arbitrarily. That would undermine the rule of law. I believe the Court should be obliged to resolve such inconsistencies. For example, the Law on Salaries of Elected and Appointed Officials: in 2009, during the global economic crisis, a provision introduced a fixed salary base. However, the previous rule—linking salaries to the average wage—was never repealed, leading to legal inconsistency. Had that been removed, the Court would not have had to decide.”
Kostadinovski also addressed questions on the solidarity tax, linear wage increases, and the dominance of the legislative and executive branches over the judiciary, stating:
“They predominantly exert pressure on the judiciary and engage in what amounts to institutional harassment. How can efficiency be expected when legally mandated resources are not provided? Citizens should visit the courts and see the conditions in which work is carried out—they are dire. Without sufficient resources, staff, and technical support, the system cannot function. I do not absolve the judiciary; it must address corruption and politically affiliated judges who damage its reputation. However, I cannot accept that only the judiciary has 2% public trust. If that is the case, what have the other two branches been doing? This is a systemic issue—there is a lack of trust in the entire state apparatus.”
Regarding the case on salary coefficients for judges and public prosecutors, he stated:
“Referring to international standards and the principles of independence, I support maintaining the salaries of judges and prosecutors. However, they must rise to the challenge and address those so-called ‘judges’ who tarnish the reputation of the entire profession.”
Kostadinovski made these remarks in the podcast “Where Is the Money?” with journalist Goran Temenugov.
The full episode is available here: https://www.youtube.com/watch?v=FmQrGoVu1U8