The Constitutional court is a court (some authors deny it has a status of court)¹ which is distinct and separate from the ordinary court system, with different composition and different procedures and with many functions: control of the constitutionality of the statutes and other acts, defense of fundamental human rights, the settlement of conflicts between the chief state bodies, or between different levels of power, trials against high public officials, control over electoral procedures etc.

The Constitutional Court is considered to be cornerstone of constitutional democracy, just as Parliament is the hallmark of representative democracy.² The Constitutional court is trusted to secure the enjoyment of the human rights through the observance of the constitution. Although, through performing of all its competences the Constitutional court contribute to the protection of human rights, most important for human rights protection are: protection against a specific violation of fundamental rights usually in an individual act, or failure to act (constitutional complaint) and protection against general rules mandated by legislative or executive power (judicial review).

 Separate from the ordinary judiciary but within the sphere of justice, the Constitutional Court in Republic of Macedonia (RM) stands out in the way it supports the system from within, safeguarding the values of the constitutionalism through the use of checks and by means of the right of individual appeal for the human rights protection.

 Constitutional judiciary is not something new in RM. Constitutional Court as separate institution for judicial review of the constitutionality and legality of the rules, was introduced for the first time in this country in 1963. The Constitution of 1963 in Macedonia combined the principle of unity of powers with the Constitutional Court as a new institution with a competence to control the constitutionality of laws and constitutionality and legality of other rules. That was an effort to unite inner control i.e. the principle of self-review with outer control. The dominance of the assembly in this country was supported with the rule that Constitutional Court had a right to repeal the law, but only after six months from the moment when they have declared it unconstitutional. The Assembly was obliged in the period of six months from the day when Constitutional Court announced the decision that the law was unconstitutional, to make it compatible with the constitution. The Constitutional Court did not have the right to suspend the application of the unconstitutional law in the following six months.

 The Constitutional Court in this country was also entitled to decide on the protection of the right to self-management and other basic human rights guaranteed by the constitutions, when those rights were violated by a certain act or activity of a state organ or the local community body, on the condition that there was not other judicial protection provided for such violation. That means that this power of the Constitutional Court was subsidiary; and it was not realized in the practice.
 
 

 “The most successful export”³ of the U.S. constitutionalism in Europe and in the whole world was judicial review, a court’s power to invalidate laws and other acts on constitutional ground.

 But different from American model of constitutional review which is “decentralized” type and gives power of judicial control over constitutionality of legislation to all judicial bodies in the legal system; the model which is dominant is referred to as “European” or “Austrian” and is characterized with authorization of one single judicial organ which experience judicial review (“centralized” type).

 The founder of this “Austrian” model of judicial review was Hans Kelsen who envisioned a hierarchy of sources of law in which the constitution occupied the principal position. Kelsen had engineered the Constitutional court, which was separate, and singular body vested with judicial review. He felt that if the regular courts were given the right to judicial review, the judicial branch would eventually dominate the other branches of government and assume a legislative function.⁴

 Following Austria, judicial review by the Constitutional court is adopted in Germany, Italy, France, Cyprus, Turkey, Portugal, Spain, Belgium, Poland, Bulgaria, Croatia, Czech Republic, Hungary, Macedonia, Slovenia etc.

 The judicial review has indirect effect on human rights protection, by protecting constitution and constitutional values among which are human rights.
 Constitutional control over norms could be divided in different types. Depending on the time when the control is performed - before or after a law has been put into effect, two different types of judicial review exist: preventive (a priori) and repressive (a posteriori) review.

 In some countries only repressive review exists (Macedonia), in other the both types exist (Austria, Italy, Germany, Spain, Hungary) and France recognizes only preventive control of the constitutionality of the norms.

 Preventive review of norms means review by the Constitutional court prior to the enactment of normative acts. In some legal systems, as it is in Portugal, all normative acts with the force of law (laws, decree-laws, regional legislative ordinances, international treaties) may be subject to preventive review on all grounds. In other, as it is in Austria, Italy, Spain preventive review is limited to question concerning the distribution of powers between the central state and its subdivisions (federated states, regions), or, as it is in Spain, to international treaties.⁵

 As it could be seen the scope of the preventive review can be limited by limiting this review only to some specified questions (Austria, Italy). It could be also limited to specific category of laws (in Germany), or by limiting the subjects who are entitled to invoke this kind of review, as it is France (President of the Republic, chairman of the National Assembly and of the Senate, Prime Minister or sixty members of the Senate) or in Romania (President of the Republic, President of either Chamber of Parliament, the Government, the Supreme Court of Justice, at least fifty Deputies, twenty-five Senators, or ex officio), or in Portugal (President of the Republic).

 The advantage of the preventive review is that it prevents promulgation of unconstitutional acts and in that way it prevents violating human rights on the base of unconstitutional laws.

 But, in some legal systems, the objection of unconstitutionality established by the Constitutional court can be removed by the legislature. For example, in Hungary in cases of unconstitutionality, the law or orders shall be returned for reconsideration and if the law is passed again in the same formulation by a majority of at least two-thirds of the members of each Chamber, the objection of unconstitutionality shall be removed, and promulgation thereof shall be binding (Art. 145 (1)). The same solution is also accepted in the Constitution of Portuguese Republic (Art. 279(2) and (4)).

 Repressive control is judicial review on the acts, which has been put into effect. This control can be made without any reference to a concrete conflict arising from the application of the law in particular case (abstract review) or with reference to a concrete conflict (concrete review).

 Abstract review is a procedure whose aim is to safeguard the objective constitutional order, i.e. not the individual interest, but interest of a community is the primary aim of this review. It is provided in most of the constitutional systems: Austrian, Bulgarian, Italian, Portuguese, Spanish, German, Russian, Slovenian, Macedonian, Turkish, Lithuanian, Hungarian etc.

 Concrete review is procedure where a court or other body in a case pending before it has doubts or considers a law to be unconstitutional where the validity of that law is relevant for its decision and refers the issue of its constitutionality to the Constitutional court.⁶ Such kinds of procedures are provided for in most constitutional systems, as in: Bulgaria (Art. 109/1), Italy, Austria (Art. 89/2-4, 139/1. 139a), Russia (Art. 125/4), Lithuania (Art. 106, 110/2). Romania (Art.144 lit.c.), Turkey (Art. 152), Spain (Art. 163), Slovenia (Art. 156), Estonia (Art. 152), Croatia, Slovakia (Art. 144), Czech Republic (Art. 95), Kazakhstan (Art. 101/2), Kyrgyztan (Art. 87), Germany (Art. 100/1) etc.

 By performing their function of judicial review constitutional courts contribute to the consolidation of the constitution as a “real judicial norm”. Constitutional courts also play a role of a certain guarantee against possible abuses of power. But, to be able to perform these function, constitutional systems has to provide fulfillment the preconditions for its independence in the manner in which they are demanded for the ordinary judiciary.

 Although judicial review is aimed at guaranteeing the objective interest of the legal system in the constitutionality and legality of the legislation, this interest is joined with the desire to protect concrete rights that have been injured by the legislator. Safeguarding the legal system and protecting individual rights are complementary rather than opposite goals, especially when one considers that “the more intensively and directly rights are defended, the more objective and just is the legal system.”⁷

 Having a common past and experience with the Constitutional Courts, Republic of Macedonia (RM) and the Republic of Slovenia (RS) in 1991 adopted a new constitutions which introduced constitutional jurisdiction with some common elements, as well as with some important differences, which are noticeable in their competencies connected with human rights protection: review of constitutionality and legality of the general legal rules and deciding on individual appeal for the human rights protection.

 The power to determine the constitutionality and legality of the legal rules is the basic right and duty, which is in the competence of every Constitutional Court. The Constitutional Courts of RS and RM can perform a posteriori judicial review. The constitutions of RS and RM determine this competence of the Constitutional Courts by enumeration of its concrete elements. The list of elements, which this competence of the Constitutional Court is consisted of, is more elaborative in the Constitution of RS.

 According to the Art. 160 of the Constitution the Constitutional Court of RS decide on:

• matters relating to the conformity of statutes with the Constitution
• matters relating to the conformity of statutes and other regulations with ratified international agreements and with general principles of international law
• matters relating the conformity of the non-statutory regulations with the Constitution and with statute
• matters relating to the conformity of local government by-laws with the Constitution and with statute
• matters relating to the conformity of the general acts issued for exercise of public authorities with the Constitution, with statute and with non-statutory regulations.

For example Art. 153 of the Constitution uses the term “international treaties currently in force, which are ratified by the National Assembly”; Art. 160 uses the term “ratified international treaties”. These articles can also be compared with Art. 8 of the Constitution, which uses the term “international treaties, which bind Slovenia”.

The essence of the Art. 8 and Art. 153 is the same. Some difference can arise between these two articles and the Art. 160, because not all ratified treaties must bind the country, or be in force. For some multilateral treaty to become in force it is necessary to be adhered by certain number of countries. So one country can adhere and ratify that treaty, but it will not come in force until enough countries do the same.

 Art. 110 of the Constitution of RM provides that the Constitutional Court of RM decides on:
- the conformity of the laws with the Constitution
- the conformity of collective agreements and other regulations with the Constitution and the laws.

 As it could be seen, instead of enumeration of the acts which are subject of the judicial review, the Constitution of RM uses the term other regulations which is very broad and entails: by-laws (decrees, decisions of the Government, directions, rules and other acts of the administrative bodies) enacted by the executive power; local-government acts (municipality statute, decisions and conclusions of the municipal council etc.); the acts of the institutions and organizations with public powers; the statutes and rules of the educational, health and other institutions and organizations; the regulations of the Assembly of the RM which do not have status of law (decisions, conclusions, declarations, resolutions and recommendations) etc. These acts are subject to the judicial review if they are general acts i.e. if they are valid for an uncertain number of entities in RM. But the evaluation whether some act is general or not is in power of the Constitutional Court. The Constitutional Court of RM misused this power to declare itself incompetent for deciding in constitutionality of some acts, which were considered as acts, which are not general, by the members of the Constitutional Court. One very obvious example was the decision of the Constitutional Court of RM that it is not competent to decide on the constitutionality of the Conclusion of the Assembly that there is no constitutional base for Parliament to issue a notice for referendum for pre-term elections.⁸ The Constitutional Court decided that it was not competent to decide on the constitutionality of the Conclusion of the Assembly with explanation that it (Conclusion) did not regulate relations, which make this act general, but it was an act of the work of the Assembly with which it decided concrete question(?!).⁹ This is very problematic explanation, because it raises many questions, as are the question of the definition of general acts; if the general acts are acts which erga omnes tanguit, whether this Conclusion of the Assembly does not produces consequences erga omnes etc.

 This decision showed that the Constitutional Court was not prepared at that time to be check on the ruling power and guardian of the Constitution; as well as that shaping of the competencies of the Constitutional Court with such general expressions in the Constitution can leave space for different interpretations and for maneuver for the Constitutional Court itself.

 But similar dilemmas appeared in RS, although its Constitution is more specific in enumeration of the competencies of the Constitutional Court. There were different interpretations of the term “general acts issued for exercise of public authority”. Dilemmas about broader or narrower understanding of this notion were present in the Constitutional Court itself, i.e. between its members.¹⁰

 Some questions about the competence that were raised before the Constitutional Court were solved by the court itself, as it was in Resolution U-I-13/91 issued in the case about evaluation of constitutionality and legality of a resolution of the RTV Slovenia Council. The Constitutional Court decided that its competence does not cover the evaluation of general acts passed for the purposes other than the exercise of public power.

 The further question that appeared was whether the collective agreements are general acts for exercising public power or not. The Constitutional Court recognized this question as problematic, but avoided to solve it, by finding some other reasons to reject the initiatives, as it was in case U-I-210/94. The Constitutional Court avoided to decide on constitutionality of the paragraph 2, Section C, of the Chapter on applicability of General collective agreements for productive branches of economy, because the procedural requirements from para.2 of the Art. 24 of the Law on Constitutional Court were not fulfilled. But the Constitutional Court admitted that they had problems with this question: “it was not necessary for the Court, within the framework of this procedure, to deal with the question of its jurisdiction for the evaluation of constitutionality of collective agreements”. In 1994 the Law on commercial and social courts was adopted, in which Art. 6 empowers these (commercial and social) courts to decide on mutual conformity of the collective agreements and of their conformity with the law. Those provisions were base for further decisions of the Constitutional Court. The court held an opinion that judges in the courts are bound in their work to the Constitution and the law, so judicial decision on the legality of some collective agreement, presupposes a decision on its constitutionality. Krivic thinks that it is only a way to escape the answer of the problematic question whether collective agreements are general acts for exercising public power or not.

 Further question that the Constitutional Court was forced to solve was the determination whether some act is general act or not. In some cases the Constitutional Court decided that acts, which are not binding for individuals and legal persons and cannot have any legal consequences, are not subject to judicial review. These acts are acts for internal activities of state and other agencies (U-I-17/92); working enactment (U-I-78/92); internal general acts by which employment relations in a state were arranged (U-I-378/96); acts of operation (U-I-377/96) etc.

 But, neither the theory, nor the practice clarified how to delimit statutes and by-laws from individual acts and other state acts lying beyond the jurisdiction of the Constitutional Court.

 The differences between judicial review in RS and RM are not present only in the question of acts on whose constitutionality and legality the Constitutional Court decide, but also in the question with which acts all that rules should be in conformity. In RS the Constitutional Court decides on conformity of the general rules with: the Constitution, statutes, ratified international agreements and general principles of international law.

 The question of conformity of some general legal rules with international agreements was raised in several cases before the Constitutional Court. For example in case U-I-2/92 the question of assessment of conformity of some articles of the Denationalization Act (Official Gazette of RS, 27/91) with International Pact of Civil
and Political Rights and the European Convention on Protection of Human Rights was raised.

 In case U-I-90/91 the question of conformity of some articles of the Law on Foreigners with the Universal Declaration of Human Rights was raised. The Constitutional Court decided that the Universal Declaration of Human Rights has not the nature and authority of an international agreement, so it (Constitutional Court) cannot evaluate a statute being or not in accordance with the Declaration.

 The Constitutional Court is not empowered to decide upon mutual conformity of statutes or two local communities’ acts. Also the evaluation of the internal harmony of individual statutory provisions is not in the competence of the Constitutional Court.¹¹ The Constitutional Court of RM also does not have such competence.¹²

 The Constitution of RM contains only a competence of the Constitutional Court to decide on conformity of the general legal rules with the Constitution and statutes. So, there is no explicit competence for the Constitutional Court to decide on the conformity of the general legal rules with the ratified international agreements, although they are part of the internal legal order and they cannot be changed by statute (Art. 118). It is a gape of the Constitution, which should be filled in with giving such competence to the Constitutional Court. In the meantime, this problem could be solved through deriving this competence of the Constitutional Court from the provision that establishes primacy of the international agreements over statutes. So, any statute that changes ratified international agreement is in conflict with the Art. 118 of the Constitution. On the other side, no constitutional base could be found for evaluation of the conformity of the general legal rules in RM with the general principles of international law.

 Another difference between the constitutions of both of these countries is connected with the international agreements. The Constitution of RS acknowledges preventive review of the international agreements, while the Constitution of RM does not include such possibility. In the Art. 110 of the Constitution of RM there is not explicit competence for the Constitutional Court a posteriori to decide on constitutionality of ratified international agreements.

 There was a case in front of the Constitutional Court to decide on constitutionality of the Law for ratification of the Agreement between the states-parties in North-Atlantic Agreement and other state parties in the Partnership for peace (No. 178/2000). The Constitutional Court of RM rejected this initiative because its content was evaluation of the “content of international agreement”. The Court ruled that it did not have such competence.

 According to the Art. 160, para.2 of the Constitution of RS and Art. 21 and 70 of the Law on the Constitutional Court, in process of the ratification of international agreements; at the instigation of the President of the Republic, of Government or of no less than one third of the Representatives of the National Assembly, the Constitutional Court shall provide opinion on their conformity with the Constitution. The National Assembly is bound by any such opinion.

 While there are differences about (non)existence of preventive review, concrete review exists in both countries. The difference is that concrete review is determined by the Constitution of RS, while in RM it finds its base in the Rules of Procedure of the Constitutional Court (Official Gazette of RM, 70/92)(!!!) and in the Law on courts (Official Gazette 36/95).

 The Constitution of RS determines that any person who can show a proper legal interest, as determined by statute, may initiate proceedings in the Constitutional Court (Art. 162 of the Constitution). Further, it specifies that, in event that a court, deciding upon any matter, concludes that a statute, which it must apply, is unconstitutional, it must stay the proceeding and refer the issue of constitutional validity of the statute to the Constitutional Court. The original proceeding in the court may only be continued after the Constitutional Court has handed down its decision (Art. 156). The Law of the Constitutional Court specifies that the concrete review of the provisions could be requested by the ordinary courts, the Public Prosecutor, the Bank of Slovenia and the court of accounts, if a question relating to constitutionality or legality arises during the proceedings they are conducting or if it is submitted by the Ombudsman and refers to individual cases discussed (Art. 23, para.1, subsections 5 and 6 of the Law on Constitutional Court).

 These institutions have not used very often their right to raise the question of constitutionality or legality before the Constitutional Court.¹³

 The Constitution of RM is silent on the question of who can initiate procedure in front of the Constitutional Court (issue of “standing”). The Assembly of RM has not adopted the Law on Constitutional Court; so most of the questions about the work and status of the Constitutional Court are regulated by the Rules of the Procedure of the Constitutional Court. The constitutional provisions, which are too basic and too modest, and non-existence of the Law, which will regulate the questions connected with the Constitutional Court, gave a lot of space to the Constitutional Court to regulate its status by itself. It is not a positive characteristic of the constitutional system of RM, because it contains possibility the principle of “check and balance” to be violated. It is dangerous, especially in a situation when the Constitutional Court provides a possibility for itself to start a procedure for determination of the constitutionality and legality of the general legal rules by itself (without someone else’s initiative).

 The Rules of Procedure of the Constitutional Court determine that anyone can give an initiative for starting a procedure in front of the Constitutional Court. That opens a possibility for concrete judicial review. So, this kind of judicial review can be founded on the Art. 12 of the Rules of the Procedure of the Constitutional Court of RM.

 The base for concrete judicial review can be found also in the Law on the courts according to which the court give an initiative for starting procedure for evaluation of the conformity of the law with the Constitution when such question arises during the procedure they are conducting. But Art. 12 of the Law on courts contains one very specific competence of the regular courts. It is the possibility when ordinary court considers that the law, which should be applied in an individual case, is not in compliance with the Constitution, the dispute shall be decided on the base of the constitutional provisions, which could be directly applied in that individual case. That is a possibility of the ordinary courts in deciding a concrete case, to exclude an unconstitutional law and to apply the constitutional previsions directly. This means that ordinary courts can decide whether they will apply some law or not, because they considered it unconstitutional. The Law on courts contains the obligation for courts to stop the procedure and to wait for the decision of the Constitutional Court, only when constitutional provisions cannot be directly applied.

 As it could be noticed from the previous pages, the initiators of the procedures before the Constitutional Courts in RS and RM are not the same.

 In RM anyone can submit the initiative to begin the procedure. The Constitutional Court also can start a procedure without initiative of anyone (Art. 12 and 14 of the Rules of Procedure of the Constitutional Court). The Constitutional Court used this competence several times.¹⁴ The Court has also used the right to broaden evaluation of the constitutionality or legality to some other provisions and questions, which were not asked in the initiative, but which, come out during the work of the court.

 RS shared the thought, which is present in most of the countries, that it is undesirable to let everyone have standing to seek abstract review. But, with acceptation of this view, framers of the Constitution, have had dealt with the question how that right should be restricted. They found the solution in the formulation that in RS any person who can proves a proper legal interest may initiate proceedings in the Constitutional Court (Art.162 of the Constitution). The Law on Constitutional Court determines that legal interest in submitting an initiative shall be recognized if a regulation or general act for exercise of public authority, submitting for assessment by an initiator, directly interferes with his rights, legal interests or legal position.

 The Constitutional Court in many decisions tried to define “the proper legal interest” as close as possible. According to the court the proper legal interest is “demonstrated when it is the initiator’s own interest, thus his personal interest which is legally recognized and protected. The legal interest must be individual and not a general and abstract interest, in defense of which any individual could appeal. The attribute of initiator can thus only be held by a person who successfully demonstrates that the impugned legal document defines his own rights, obligations or legal benefits” (U-I-163/92). “Evidence of proper legal interest is thus not provided when such legal interest is justified by any such legal status as may refer to somebody else and not the initiator, or when it is justified on such personal ground as are not recognized and protected by law”. There was no proper legal interest when “the initiators based his legal interest on an assumed legal status of others, not his own; even if his proposal had been accepted, his legal status would nave remained the same, for which reason he would not have been able to derive direct and personal benefit from this” (U-I-136/92). Neither there was proper legal interest when “the initiators based their legal interest only on the suspicion of prejudice to social assets, and not on prejudice to their rights and interests” (U-I-159/92).

 The Law on the Constitutional Court of RS makes difference between right to make an initiative and right to submit a request for starting a procedure for judicial review. A right to submit a request for abstract review is in the competence of: the National Assembly, the National council, the government, representative bodies of local government, representatives of the trade unions; as well as a right to ask concrete review to some bodies, which were already mentioned.

 The Constitutional Court of RS does not have right to start procedure on its own initiative (if the initiative by other person or request by some body was not submitted). But when the initiative or request is submitted, in deciding on the constitutionality and legality of a regulation or general act issued for the exercise of public authority, the Constitutional Court shall not be bound to a proposal from that request or initiative. The Constitutional Court shall be entitled to assess the constitutionality or legality of the provisions of this or some other regulations or general acts issued for the exercise of public authority whose constitutionality or legality have not been submitted for assessment, if such provisions are mutually related, or if this is urgent for the solution of the matter. For example, the Constitutional Court of RS used this possibility in the case U-I-184/94, when it abrogated the entire Agricultural Lands Act, reasoning that statutory provisions, which in general limit or exclude the right of ownership on agricultural lands, are inconsistent with constitutional provisions that assure the right to private property and inheritance. The justices ruled that the Court should not annul only selected provisions since the remaining statute would thus become incoherent. The same possibility was also used in the case U-I-25/95 when the Constitutional Court decided to annul seven articles of the Code of Criminal Procedure that regulate special investigatory methods, although the petitioners challenged only two paragraphs of Art. 150.

 As it can be seen, the right to ask for judicial review, i.e. the right to challenge constitutionality or legality of some general legal rule in RM is put in hands of everyone. The scope of subjects who can initiate a procedure in RS is more limited with the demand proper legal interest to be shown.

 But even when proper legal interest is shown, that does not mean that the Constitutional Court must start a procedure. Art. 26 para.2 of the Law allows ”discretion” to the Constitutional Court of RS not to accept an initiative if it is clearly unfounded or if it refers to a legally unimportant issue. It is problematic what can be considered as a legally unimportant issue, and that opens a field for discretion to Constitutional Court to decide on this question. But, it must be noticed that Constitutional Court can decide not to accept only an initiatives on this ground, and it does not have that right when request is submitted by the bodies enumerated in Art. 23 of the Law on Constitutional Court.

 The Constitutional Court of RM does not have such discretion at all. In that respect, the position of the individuals before the Constitutional Court in RM is legally better protected (although it is done with the Rules of procedure of the Constitutional Court).

 The procedures before Constitutional Court in both countries are regulated in the Law on the Constitutional Court of RS¹⁵ and Rules of Procedure of the Constitutional Court of RM. As a result of the procedure for judicial review, if the general legal rule is unconstitutional or illegal, the Constitutional Court can issue different decisions with different legal effect.

The Constitutional Court of RM can issue decision with which it will abrogate (ex tunc) or vitiate (ex nunc) the law, ordinance, enactment, collective agreement, or shortly said every general legal rule if they are not in compliance with the Constitution or the law.

 The Constitutional Court of RS can issue different decisions depending on the act, which was under the judicial review. So, it can decide:
- to vitiate (ex nunc) a law - completely or partly
- to vitiate (ex nunc) or abrogate (ex tunc) a non-statutory regulation and general acts issued for the exercise of public authority
- if a law, or other regulation or general act for the exercise of public authority during the procedure for judicial review ceased to be valid, but consequences of unconstitutionality or illegality were not abolished, the Constitutional Court may declare that such act was not in conformity with the Constitution and the laws
- to adopt ascertainment decision, if it determines that the law, other regulation or general act for the exercise of public authority was unconstitutional or illegal because a certain matter which should have ordered was not ordered, or is adhered in a manner in which it cannot be vitaed or abolished. The legislator or body which issued the unconstitutional or illegal regulation or general act issued for exercising public authority must ensure that the unconstitutionality or illegality is abolished within the time-limit set by the Constitutional Court. Constitutional Court of RM does not have such competence.
- to interpret the legal rule. This is special kind of decision of the Constitutional Court of RS, which does not have legal base in the Constitution or in the Law on Constitutional Court. In this decision the Constitutional Court does not vitae or abolish the law, but it interprets it. Contrary to the decisions with which Constitutional court abrogate or vitiate regulations and which make it “negative legislator”, the interpretative decisions give to the Constitutional court characteristics of “positive legislator”.¹⁶

 Other important difference between the legal effects of the decisions of the Constitutional Court in RS and RM is that the decisions of the Constitutional Court of RM come into force with the day of their publishing in “Official Gazette of RM”, while the Constitutional Court of RS can decide its decision to come into force after expiry of time-limit determined by the Constitutional Court itself (Art. 43 of the Law on Constitutional Court)¹⁷ or to oblige the state body to eliminate identified unconstitutionality within a time-limit set again by the Constitutional Court itself (Art. 48).¹⁸

 Having in mind these characteristics of the Constitutional Court in RM and RS, especially the “standing rules” and legal effects of the decisions of the Constitutional Court in RM, it could be said that it is one of the most powerful and perhaps even most active specimen at its kind in the world. But, in the practice it is not like that. The Constitutional Court has not become “key player” in the constitutional and political system.

 As Svetomir Skaric points out, the real role of the Constitutional Court in the protection of human rights depends not only on the legal effect of its decisions. Its role depends essentially on the following factors: the ability of the constitutional judges to adopt the decisions on the basis of developed theoretical awareness for the character and further development of the constitutional order of the country (interpretation of the Constitution in compliance with the liberal democratic theory and the contemporary constitutionalism); second, the valor of judges to impose the rule of law as a frame of the state power (constitutionality control as a legal category); and third, the readiness of the judges to protect the Constitution, not only from formal breaches, but also from all forms of its factual change (verfassungwandlung).¹⁹

 Performing their competencies in evaluation of constitutionality and legality of general legal rules, Constitutional Court in RS and RM most of the times (not always) held opinions which were quite defensible, but not always argued in a sufficiently explicit way to persuade the public. The Constitutional Court of RM has not always avoided political influence when it decided on some cases. But, even when the Constitutional Court managed to act as protector of the Constitution, the government made pressures to “discipline” the members of the Court.

For the Constitutional Court to be honored in their function to protect human rights by their normative violations they should try to represent the “idealism” of the constitutional regulations, in contrast to the “pragmatism” of the other state bodies.
 
 

 In many constitutions, the protection of human rights is one of the competences of the Constitutional courts. The Constitutional courts in Austria, Germany, Spain, Hungary, Croatia, Czech Republic, Slovenia²⁰ have a duty to protect constitutional rights of man and citizens.

 In Spain and Germany constitutional complaint (recurso de amparo in Spain and verfassungsbeschwerede in Germany) is of utmost significance and is designed as a means by which Constitutional court can remedy individual violations of any of the fundamental rights defined as such in the constitution.²¹

 The writ of amparo, the origins of which go back to the Kingdom of Aragon, is an institution that has been used since the nineteenth century in Latin America. Under that influence recurso de amparo was adopted in the Spanish Constitution of 1931. Now petition of amparo can be invoked against administrative acts and court decisions interfering with fundamental rights.

 The constitutional complaints, which are adopted in some of the constitutions, differ in many aspects between themselves.

 First is the question against which acts the constitutional complaint can be invoked. For example, in Germany constitutional complaint can be invoked against any and all public powers in the event of the violation of a fundamental right, i.e. constitutional complaint can be raised if some fundamental right is violated by judgment, by an administrative act, or (under certain conditions) by a statute.

 In Spain amparo can be invoked against judgment of the courts and administrative acts. Amparo cannot be invoked directly for review of the constitutionality of the statute (unlike constitutional review in Germany), but the chamber of the Constitutional Tribunals that reviews writes of amparo may refer questions on the constitutionality of an underlying statute to the full court.²²

 In Austria constitutional complaint can be invoked only when administrative authorities have violated a particular right, which is guaranteed by a constitutional provision.

 The differences between the constitutional complaints in these countries came also from the differences in the procedures for invoking and deciding upon these complaints.

 In Austria subject of a petition for protection of fundamental rights is:
 - a decree issued by the last instance of the administrative authorities
 - an act of immediate command and compulsion by an administrative authority, such as an arrest or a search.
 The petition has to be filed within six weeks after a decree was issued or an act of immediate command and compulsion was performed.

 So, the formal requirements for invoking the petition are:
 - six-week period for the filing of a petition
 - petition has to be filed after a decision of the highest authority was made
 - a case should fall within the jurisdiction of Constitutional court.

 Until 1981 the Constitutional court in Austria was obliged to decide each case with an opinion. The rejection of the petition had to be also accompanied by an opinion. In 1981 by constitutional amendment, the Constitutional court was authorized to refuse a petition “if there is no reasonable chance of success”. To this reason for rejection of the petition, in 1984 a new one was added. Since 1984, Constitutional court has been authorized to refuse a petition when a “decision on the petition cannot be expected to clarify an issue of constitutional law”. In such case, a Constitutional court dismisses a petition and can refer the case to the Administrative court.

 In Spain any natural or legal person invoking a legitimate interest, as well as the Defender of the People and the Office of Public Prosecutor are entitled to lodge a constitutional complaint (Art. 162).

 The constitutional complaint in Spain has subsidiary character. This means that access to constitutional jurisdiction is limited to those complaints, which exist, in the legal system. Subsidiary nature of the procedure upon constitutional complaint places the Constitutional court in a position to be the “judge of judges” (who decide in the cases where a previous judgment has been handed down by another judicial body).²³

 In Hungary, a constitutional complaint can be invoked if the right is violated by the application of an unconstitutional norm. The principal subject matter before the Constitutional court would not be the norm but the act of application of that norm. The constitutional complaint may be invoked in a period of sixty days after the act is issued by the highest instance.

 The divergences between the various legal orders providing for a constitutional complaint exist with the regard to the scope of review and type of decision.
 For example, in Austria the Constitutional court in constitutional complaints may repeal an ordinance or the law only to the extent it has been expressly pleaded by the complainant, or the court would have had to apply it in the pending suit. But, if the court finds that the ordinance has no foundation in law; was issued by an authority without competence in the matter or was published in a manner contrary to law; shall rescind the whole ordinance as illegal (Art. 139(3)). Also, if the Constitutional court finds the law as a whole to have been promulgated in an unconstitutional manner, it must repeal the whole law, unless such total repeal would operate against the interests of the complainant (Art. 140 (3)).

 In Germany the Constitutional court had extended its scope of review not only beyond the fundamental rights claimed by the complainant as having been violated but also to other norms of the constitution or constitutional principles.²⁴

 The right to the constitutional complaint for protection of some fundamental rights is important mean for human rights protection, but in practice very often it is not so effective. The huge number of constitutional complaints, which are logged to the Constitutional court, constitute a strain on the efficiency of the court and it leads to the situations when court needs a year to deliver a decision upon one complaint.

 Constitutional appeal is one of the most important, but in the same time controversial means for the human rights protection. Some ancedents of the jurisdiction of the Constitutional Court in Slovenia and Macedonia to protect fundamental rights could be found in their Constitutions from 1963, which empowered the Constitutional Court to decide on the protection of self-government rights and other fundamental freedoms and rights specified, by the Federal and member states constitutions; in case when these were violated by an individual act or deed by the state or communal body or company in case this was not guaranteed by other judicial protection by statute. This instrument had no result in the practice. The Constitutional Court rejected individual suits on the basis of an absence of power and directed the plaintiff to the ordinary courts.

 The wave of democratization and ideas about human rights protection in countries of the post-communist Europe actualized the need for human rights protection by the Constitutional Court, i.e. the idea of constitutional appeal. The experiences especially from Germany, Austria, and Spain were used as a model for shaping the provisions for constitutional appeal in new constitutions. Aware of the differences between the constitutional appeals in different countries, a definition of the constitutional appeal made by the German author Rüdiger Zuck can be used for evaluation of the existence of this legal instrument. The elements of his definition of the constitutional appeal presented by Ivan Kristan are the following:

• constitutional appeal is special legal mean
• it is legal mean for protection of basic rights
• it is a legal mean directed toward public power, i.e. toward act of all three powers (legislative, executive and judicial)
• the object of protection are all basic rights of the plaintiff, i.e. not only rights of the negative status, which protects the individual from the interference of the state, but also rights of active status, i.e. political rights
• constitutional appeal can be used when the rights of the plaintiff are violated, not when someone else’s rights are violated
• the statement of the plaintiff that his fundamental rights are violated is enough for lodging constitutional appeal
• constitutional appeal is only special legal mean and it is not a basic constitutional right by itself.²⁵

 Constitutional provisions for constitutional appeal in RS are relatively modest. Its details are regulated by the Law on Constitutional Court. The situation in RM is worse. The Constitution of RM even does not use the term constitutional appeal. The provisions of the Rules for the Procedure of the Constitutional Court of RM use the term “demand”.

 The Constitution of RS determines that Constitutional Court decides cases of constitutional appeal alleging violations of the human rights and fundamental freedoms by individual acts (Art. 160, para.1 subpara. 6).

 The Constitution of RM determines that Constitutional Court protects the freedoms and rights of the individual and citizen relating to the freedom of conviction, conscience, thought and public expression of thought, political association and activity as well as to the prohibition of discrimination among citizens on the ground of sex, race, religion or national, social or political affiliation (Art. 110, para.1, subpara.3). It is not clear the criteria on which the “framing fathers” selected only these rights to be protected by the Constitutional Court.

 As it could be seen, the first difference between the competence of the Constitutional Court in RS and RM is in the scope of rights that are protected by them. The Constitution of RS uses a general term and gives the Constitutional Court competence to decide on violations of “human rights and fundamental freedoms” by individual acts. This general formulation of that provision has been criticized by some authors.²⁶

 M. Krivic writes that this formulation, on the one hand could be considered as weakness of the constitutional provisions because it is not very clear which right are protected by the constitutional appeal, but on the other hand it could be considered as advantage because the scope which is protected is elastic and it allows broading of the fields which are protected.²⁷

A. Mavcic wrote that the protection by the Constitutional Court embraces all constitutionally guaranteed fundamental human rights and freedoms, including those which adopted through international agreements become part of the national law through ratification.²⁸

 This does not make the situation perfectly clear because this answer does not cover the question whether the rights, which are not regulated in the Chapter II of the Constitution, are protected by the constitutional appeal or not. The Constitutional Court in its practice refused to recognize that some Articles of the Chapter III contain constitutional rights. Some cases are already pointed out in the part devoted to the conceptions of human rights in the constitutions of RS and  RM.

 But the Constitutional Court of RS in its Resolution Up-38/93 recognized the right to citizenship regulated in Art. 13 of the Constitutional Law for Implementing the Basic Charter on the Sovereignty and Independence of the Republic of Slovenia, as constitutionally guaranteed right and accepted the constitutional appeal.

 The practice of the Constitutional Court has given the answer that violations of the general constitutional principles cannot be protected by the constitutional appeal. In Resolution on the case Up-13/92 the Constitutional Court did not accept the constitutional appeal because the general constitutional “principles do not make part of human rights or fundamental freedoms. For a constitutional appeal may only be lodged in case of violation of the said rights and freedoms, but not in the event of violation of general constitutional principles.”

 The court has also stated that it does not have competence to consider whether in the process of reaching its decision the regular court has applied substantive and procedural law as appropriate, because the Constitutional Court is not the appellate tribunal with respect to inferior courts (Up-109/94).

 According to the Law on Constitutional Court, any person who believes that his human rights and basic freedoms have been violated by a particular act of a state body, local community or statutory authority and human rights ombudsman when it is directly connected with a particular issue with which he deals have active legitimation for lodging constitutional appeal in RS (Art. 50). The Constitutional Court interpreted this provision as it recognizes active legitimation not only to natural, but also to legal persons. In the Resolution on the case 10/93 the court reasoned that the “holders of constitutional rights are both natural and legal persons. But this is true of the latter only in so far as individual rights by their nature apply to them.”²⁹

 In some other Resolutions the Constitutional Court of RS elaborated conditions of active legitimation for lodging constitutional appeal.

“Any person requesting legal protection of his rights and legal interests must demonstrate a legal interest: he must demonstrate the likelihood that, if his request was granted he would derive a special legal advantage which he would otherwise be unable to achieve. A plaintiff must thus demonstrate a legal interest in lodging a constitutional appeal as a legal remedy for the protection of human rights and fundamental freedoms”, reasoned the Constitutional Court in the Resolution Up-29/93. An organization, which does not have the authorization to represent its members, has no legal standing to lodge a constitutional appeal (Up-66/94).

 In RM, according to the Rules of the Procedure of the Constitutional Court, every citizen who believes that any of the rights enumerated in the Art. 110, para.1, subpara.3, is violated by individual act or activity, has active legitimation to ask a protection of that right. This provision is very restrictive because it allows “legal standing” only to citizens, not to every person. The legal persons are excluded with this provision but also with the character of the rights, which are protected. The citizen may demand protection of his rights, and not for rights of other person (Resolution U. No., 29/97).

 The subject matter of a demand for protection of some of the enumerated rights before the Constitutional Court of RM is individual act or activity. Procedural conditions stated in Art. 51 of the Rules of the Procedure of the Constitutional Court of RM are: that the demand for protection of the right should be submitted in the period of two months from the day of the final legally valid individual act, or of the day when the citizen found out about the activity, but not later than five years. From this provision which establishes subjective and objective terms is derived the conclusion that “the Constitutional Court can carry out direct protection of the mentioned freedoms and rights only if they are violated by a final individual act of an ordinary court”.³⁰

The Constitutional Court in a Resolution U.no.168/97 stated that it “decides for protection of freedoms and rights violated by final and legally valid act, and the act of the Public prosecutor is not an act which is final or legally valid individual act which decides on freedoms and rights, i.e. which revokes or limits some freedoms and rights.”³¹

 The similar Resolution about the Public Prosecutor was issued by the Constitutional Court of RS is case Up-35/93: “It is not possible to lodge a constitutional appeal against a document, which is claimed to have violated human right or fundamental freedom. The impugned records of the Public prosecutor’s office are not individual legal acts since nothing is decided by them about any of the plaintiff’s rights or obligations.”

 The subject -matter of a constitutional appeal in RS is an individual act³² of a state body, local community body or statutory authority.

 Procedural requirements for lodging constitutional appeal are exhaustion of legal remedies. But, before all extraordinary legal means have been exhausted, the Constitutional Court may exceptionally decide on a constitutional appeal if a violation is probable and if certain irreparable consequences would occur appellant as a result of the implementation of a particular act (Art. 51 of the Law on the Constitutional Court).

 The Constitutional Court cannot accept into decision a constitutional appeal if reasons for extraordinary ruling on the constitutional appeal prior to the exhaustion of legal remedies do not exist, especially if the plaintiff has not supplemented the accusation with evidence of the obviousness of the alleged violation despite being called upon by the court to do so and since it was established that the consequences may be remedied should the plaintiff be successful with the legal remedy and should the ruling differ from the one that currently stands (Up-44/93).

 A constitutional appeal shall be lodged within 60 days after the day of the acceptance of a particular act against a constitutional appeal is permitted. In specially founded cases the Constitutional Court may exceptionally decide on the constitutional appeal, which has been lodged after that time limit. This time must be deemed to begin to run on the date of delivery of the personal act issued in reference with the last legal remedy filed (Up-78/94).

 The constitutional appeal in RS and demand for protection of some rights in RM must indicate particular act, which is subject of the appeal and facts of the alleged violation of human rights.

 The procedure for examining a constitutional appeal in RS starts with a ruling on whether to accept a constitutional appeal and begin proceedings made by the Constitutional Court in senate of three judges at a session closed to the public.

 The rejection or acceptance of a constitutional appeal shall be decided upon unanimously by the senate. This ruling is final, if a constitutional appeal was not accepted by the senate. It shall nevertheless be accepted if such is the written decision of any group of three judges of the Constitutional Court within 15 days after the initial decisions.

 The Rules of the Procedure of the Constitutional Court of RM does not contain any provisions about procedure for deciding on allowability of the demand for protection of human rights.

 The provisions of this act only regulate that the demand for protection of human rights shall be sent to the body, which issued the individual act, i.e. the body that made the activity in the period of 3 days of the day when the demand is accepted. This body should reply in a period of 15 days. The Slovenian Law on Constitutional Court contains the same provision, but it does not specify the terms for that.

 The accepted constitutional appeal is discussed by the Constitutional Court usually at an in camera session, but also possibly at a public hearing in RS, and “as a rule, at public hearing” in RM on which the participants in the procedure, the Ombudsman, and if needed some other persons and bodies are invited. The public hearing may be held even if some of the participants in the procedure or Ombudsman are not present, if they are regularly invited.
 During the procedure the senate or the Constitutional Court of RS and the Constitutional Court of RM may suspend the implementation of the particular act, which is subject of appeal. The Law on Constitutional Court of RS specifies that it could happen if the implementation of that act would cause irreparable damage. The
Constitutional Court of RS may also suspend the implementation of a certain law or other regulation or general act for the exercise of public authority, on the basis of which the individual act was adopted.

 The decisions in merito of the Constitutional Court of RS may be following:
- the Constitutional Court may issue a decision declaring that the constitutional appeal was unfounded
- may accept the constitutional appeal and partly or completely abrogate (ex tunc) or vitiate (ex nunc) the act that was the subject of the appeal, and return the matter to the competent body
- may abrogate or vitiate a general act which was base for issuing an abolished individual act
- may decide on a contested right or freedom if such procedure is necessary in order to abolish consequences that have already occurred on the basis of the individual act, or if such is the nature of the constitutional right or freedom, and if a decision can be reached on the basis of information in the record.

 The Constitutional Court of RM may:
- issue a decision declaring that the demand was unfounded
- abrogate (ex tunc) or vitiate (ex nunc) the individual act
- prohibit the activity by which human rights were violated.

 Having in mind the already presented characteristics of the constitutional appeal in RS and the demand for protection of enumerated human rights by the Constitutional Court of RM; as well as considering the characteristics of the constitutional appeal in Germany, Austria and Spain, the question of the “particularities” of the Slovenian and Macedonian models can be asked.
- The subject-matter of the constitutional appeal in RS is individual acts; in RM -individual acts and activities; in Spain also individual acts, acts of the Parliament (except laws), acts of the executive bodies and of the judicial bodies; in Austria only individual acts of the administration and not of the Court (not judgments) and in Germany- all kinds of acts including laws.
- The scope of rights that are protected - in RS there is general provision for that; in RM - very restrictively only few rights are enumerated; in Germany and Spain the rights (articles) are precisely determined.
- Exceptions from precondition of all remedies having previously been exhausted is characteristic of Slovenian system.
- M. Krivic points out another difference between the German and the Slovenian constitutional appeal. German constitutional appeal protects from interference by public power, while for Slovenia it is not perfectly clear whether “individual acts” which are subject-matter of the constitutional appeal are only individual acts of the public power, or it includes the private legal acts (contracts) which violate human rights.³³
- Characteristic of the Slovenian system compared with Macedonian is that its Constitutional Court works in senates, while Macedonian court works in plenum.
- Public hearings are characteristic of the work of the Constitutional Court of RM.
But its biggest weakness of the competence of the Constitutional Court of RM is its very limited scope of rights, which are protected. That can lead us to the conclusion that in RM there is no constitutional appeal, which fulfills the conditions (elements) of the definition stated at the beginning.
Such restricted competence of the Constitutional Court of RM resulted in very small number of demands received.
From 1992 till 2000 the Constitutional Court of RM received and decided 73 demands. 55 of them were rejected for different reasons (most of them were rejected because the Constitutional Court was not competent for protection of that right; then because the objective and subjective term were not respected; because the Constitutional Court was not competent to decide on violations of rights by that kind of acts; because the Constitutional Court has already decided on the same demand). In 16 cases the Constitutional Court decided in merito and all demands were unfounded.

The Constitutional Court of RS received 1833 constitutional appeals from 1992 to 1999. 1338 were decided. Only 125 were decided positively.

Expressed in years these numbers look like this:
 
 

 These numbers show that constitutional appeal is much more used in RS than in RM. That is first of all because the constitutional appeal in RS protects all constitutional rights and in RM only few rights. The restricted competence of the Constitutional Court of RM liberated it from too many demands for human rights protection and gives the court chance to concentrate itself to its “main” function - evaluation of constitutionality and legality of general legal rules. But on other side it takes away from the persons (in RM citizens) one very powerful and important instrument for human rights protection. And legal means for human rights protection are never enough or too much.

 In Slovenia the number of received constitutional appeals is increasing which shows that it is used “as a kind of highest instance of the Court” when all legal remedies are exhausted. The bid number of constitutional appeal speaks that Constitutional Court is respected and trusted as one of the guarantees and protectors of the constitutional rights. The evaluations of the work of the Constitutional Court in the legal literature are predominantly positive.

 After expressing the weaknesses of some decisions of the Constitutional Court in which restrictive interpretations of rights and the Constitution were applied, the authors points that “the Constitutional Court in that segment of legal protection fulfills its competencies with a quality.”³⁴ The work of the Constitutional Court in deciding constitutional appeals is not easy. It is difficult and with lot of responsibilities. The Constitutional Court is facing problems with big number of constitutional appeals and with its understanding as final judicial instance which leads toward misuse of this legal instrument.³⁵

 On the other side, the low number of cases decided positively in RS shows that there should be satisfaction of the work of the ordinary Court. The fact that too many demands for protection of some rights in RM were rejected because the court was not competent for protection of that right shows the need for broadening of court’s competencies. The 16 cases, which were decided in merito, were decided satisfactory.

 The constitutional provisions about the Constitutional Court of RS and the Constitutional Court of RM are very modest and in some sense general. The Law on Constitutional Court of RS and the Rules of the Procedure of the Constitutional Court of RS contain precise and satisfactory provisions for regulating its position and competencies. The legislative power in RM till now failed to regulate the position of the Constitutional Court by law. The Constitutional Court filled that gap with its Rules of the Procedure.

 The Constitutional Courts in both countries had difficult jobs in the previous period, because the legal system was changing radically, but old laws were still in force. But they managed to deal with that situation by adopting decisions, which were mostly approved by the public.

Miro Cerar points out that generally it is possible to speak that in this previous period the Constitutional Court in RS was “successful” in broadening of its activities and in performing its abstract constitutional competencies, compared with the Parliament, Government and the regular courts. When bigger number of constitutional arguments on many questions were missing, it is easy the judicial power without democratic control and clearly defined limits to become obstinate. That resulted according to M. Cerar in two politically motivated decisions of the Constitutional Court: U-I-12/97 - about the electoral referendum and the Decision U-I-301/98 - about unconstitutionality of municipality Koper. That made moral and professional authority of the Constitutional Court lower.³⁶

 Such political decisions, which affected authority of the Constitutional Court, were also present in RM. The Constitutional Court of RM did not have high professional authority in the previous period. Till now the Constitutional Court of RM was very self-constrained in its activities. Although legally it has the right to start procedures ex officio, the Constitutional Court used this right very rare.

 The explanations of its decisions were not elaborate, argumented and suggestive.

 The Constitutional Court of RM also did not try to base its decisions on the general constitutional principles and to concretize their content.

 It seems that the Constitutional Courts in both countries have not used or consulted experiences of the practice of the Constitutional Courts in developed democracies, as well as the practice of the European court of human rights.

 But generally speaking, the Constitutional Courts in both countries with their activities, in evaluation of the constitutionality and legality, as well with their activities connected with the constitutional appeals and demands, played positive role in the constitutional development of these countries and in the human rights protection.
 

1. Carl Schmitt thought that the court Kelsen had engineered was a self-defeating contrivance, a disguised branch of the legislature that had nothing to do with jurisdiction and was bound to fall prey to political parties. Kelsen countered this attack by arguing that the Court was a true and proper judicial body, except that in the logic of his Stufenbau jurisdiction acquires the dual nature of a law creating as well as law applying process. See in: Antonio La Pergola, “Introductory statement” in “The role of the Constitutional court in the consolidation of the rule of law -Proceedings of the UniDem Seminar organized in Budapest on 8-10 June 1994”, Strasbourg: Council of Europe Press, 1994, p. 10.

2.  The critics of Constitutional court “described it as the deadly lightening which the court would send, as Jove from his throne, to kill laws that according to democratic rules embody the will of the people”. See: Antonio La Pergola, “Introductory statement” in “The role of the Constitutional court in the consolidation of the rule of law - Proceedings of the UniDem Seminar organized in Budapest on 8-10 June 1994”, Strasbourg: Council of Europe Press, 1994, p. 12.

3. Leszek Galicki, “The Influence of American Constitutional Ideas on the Development of Constitutionalism in Poland and Eastern Europe” in Kenneth W. Thompson and Rett R. Ludwikowski “Constitutionalism and Human Rights: America, Poland, and France - A Bicentennial Colloquium of the Miller Center”, London: University Press of America, 1991, p. 49. In his conclusion to an international colloquium on European constitutional courts, Jean Rivero suggested that “At that time (before World War II), constitutional review was for public law like Western and American comedy for movies - an American specialty”. Quoted in Louis Favoreau, “Constitutional Review in Europe” in Louis Henkin and Albert J. Rosenthal (eds.), “Constitutionalism and Rights - the Influence of the U.S. Constitutions Abroad”, New York: Colombia University Press, 1990, p. 40.

4. See: Mark Brzezinski, “The Struggle for Constitutionalism in Poland”, Oxford: St Anthony’s College, 1998, p. 18

5.  Helmult Steinberger, “Decisions of the Constitutional court and their effects: in “The role of the Constitutional court in the consolidation of the rule of law -Proceedings of the UniDem Seminar organized in Budapest on 8-10 June 1994”, Strasbourg: Council of Europe Press, 1994, p. 79.

6.  Helmult Steinberger, “Decisions of the Constitutional court and their effects: in “The role of the Constitutional court in the consolidation of the rule of law -Proceedings of the UniDem Seminar organized in Budapest on 8-10 June 1994”, Strasbourg: Council of Europe Press, 1994, p. 90

7. Giancarlo Rolla and Tania Groppi, “Between politics and the law: the developments of constitutional review in Italy”, paper on the Vth World Congress on Constitutional Law, Rotterdam, 1999, p. 3.

8.According to the Constitution of RM the Assembly decides on issuing notice of referendum concerning specific matters within its sphere of competence. The Assembly is obliged to issue notice of referendum if one is proposed by at least 150 000 voters. In 1996, 150 000 voters demanded by the Assembly to issue a notice of referendum on the question: “Are you for pre-term elections for representatives in the Assembly of RM, which would be held at the end of 1996?” The Assembly did not accept this initiative with the explanation that it can issue a notice of referendum concerning specific matters within its sphere of competence, and not for pre-term elections. There was initiative sent to the Constitutional Courts for deciding on constitutionality of this Conclusion of the Assembly.

9.See Resolution of the Constitutional Courts of RM, No. 1290, Official Gazette of RM, No. 70/96.

10. See Matevž Krivic, “Ustavno sodisce: pristojnosti in postopek” in Marijan Pavcnik and Arne Mavcic (eds.), “Ustavno sodstvo”, Cankarjeva zalozba, Ljubljana, 2000, p. 72.

11.  See Resolution U-I-210/93-19; U-I-300/94

12. See Resolutions: U.no.167/96; 129/96; 22/96; 165/96; 82/97 etc.

13.  According to Krivic, courts had used this right 12 times, Public Prosecutor 7, Ombudsman 3, court of accounts 1 and Bank of Slovenia never. See: Matevz Krivic, “Ustavno sodisce: pristojnosti in postopek” in Marijan Pavcnik and Arne Mavcic (eds.), “Ustavno sodstvo”, Cankarjeva zalozba, Ljubljana, 2000, p. 106.

 14. For example see: Decision U.no.206/94 (The Law on Protection and Usage of Farming Land); Decision U. no. 81/95 (The Law on Operating and Managing of the Amenity Enterprises with Special Public Interest).

15.  Matevz Krivic criticizes the provisions of the Law on Constitutional Courts of RS, which regulate procedure for examining initiative and preparation procedures. More see: Matevz Krivic, “Ustavno sodisce: pristojnosti in postopek” in Marijan Pavcnik and Arne Mavcic (eds.), “Ustavno sodstvo”, Cankarjeva zalozba, Ljubljana, 2000, p. 97.

 16.  Igor Kaucic and Franc Grad, “Ustavna ureditev Slovenije”, Gospodarski vestnik, Ljubljana, 2000, p. 313.

17. As examples of such decisions see: U-I-92/93; U-I-154/94-3

18. As examples of such decisions see: U-I-77/94-12; U-I-17/94; U-I-104/92; U-I-125/92; U-I-183/94.

19. Svetomir Skarich, “Constitutional Court of the Republic of Macedonia” in Guiseppe de Vergottini (ed.), “Giustizia constitutionale e sviluppo democraticonei paesi dell Evropa Centr-orientale”, Torina, 2000, p. 177; Svetomir [kari}, “Makedonija na site kontinenti - mir, demokratija, geopolitika”, Union trejd, Skopje, 2000, p. 436.

20. It must be said that all these constitutions contain very few provisions devoted to the Constitutional court and its regulation is made by the statutes, or Rules for Proceeding of the Constitutional court.

21.  See: Luis Lopez Guerra, “The Role and Competences of the Constitutional court” in “The role of the Constitutional court in the consolidation of the rule of law -Proceedings of the UniDem Seminar organized in Budapest on 8-10 June 1994”, Strasbourg: Council of Europe Press, 1994, p. 29.

22. See: Louis Favoreau, “Constitutional Review in Europe” in Louis Henkin and Albert J. Rosenthal (eds.), “Constitutionalism and Rights - the Influence of the U.S. Constitutions Abroad”, New York: Colombia University Press, 1990, p. 54.

23.  See: Luis Lopez Guerra, “The Role and Competences of the Constitutional court” in “The role of the Constitutional court in the consolidation of the rule of law -Proceedings of the UniDem Seminar organized in Budapest on 8-10 June 1994”, Strasbourg: Council of Europe Press, 1994, p. 31.

24. Helmult Steinberger, “Decisions of the Constitutional court and their effects: in “The role of the Constitutional court in the consolidation of the rule of law -Proceedings of the UniDem Seminar organized in Budapest on 8-10 June 1994”, Strasbourg: Council of Europe Press, 1994, p. 96.

25.  Ivan Kristan, “Ustavna priozba” in “Slovenija in Evropska Konvencija o clovekovih pravicah”, Zbornik razprav, Svet za varstvo clovekovih pravic in temeljnih svoboscine, Ljubljana, 1993, p. 121; Ivan Kristan, “Ustavno sodstvo” in Franc Grad, Igor Kaucic, Ciril Ribicic and Ivan Kristan, “Drzavna ureditev Slovenije”, Uradni list Republike Slovenije, Ljubljana, 1999, p. 214; Ivan Kristan, “Ustavna pritozba”, Pravnik, Ljubljana, Let.  47 (1992) 6-8, p. 211.

26.  Janez Kranjc writes that such uncertainty of the object of protection by the Constitutional Courts on the basis of the constitutional appeal moves away the Constitutional Courts from its premiere competence: to protect constitutional order. See: Janez Kranjc, “Ustavna pritozba kot institut varstva clovekovih pravic” in Marjan Pavcnik, Ada Polajnar -Pavcnik and Dragica Wedam-Lukic (eds.), “Temeljne pravice”, Cankarjeva zalozba, Ljubljana, 1997, p.387.

27. Matevz Krivic, “Ustavno sodisce: pristojnosti in postopek” in Marijan Pavcnik and Arne Mavcic (eds.), “Ustavno sodstvo”, Cankarjeva zalozba, Ljubljana, 2000, p. 169.

28. Arne Mavcic, “The Specialties of Slovenian Constitutional Review - as compared with the current systems of such review in the new democracies” in Guiseppe de Vergottini (ed.), “Giustizia constitutionale e sviluppo democraticonei paesi dell Evropa Centr-orientale”, Torina, 2000, pp. 179-180.

29.  “It is in particular not possible to make any difference between natural and legal persons from the point of view of property. In as far as property is concerned, the constitutional rights of a legal person as such (as the whole) are protected.” See: Resolution Up-10/93.

30.  Svetomir Skarich, “Constitutional Court of the Republic of Macedonia” in Guiseppe de Vergottini (ed.), “Giustizia constitutionale e sviluppo democraticonei paesi dell Evropa Centr-orientale”, Torina, 2000, p. 143.

31. The Constitutional Courts also rejected the demand for human rights protection with the Resolution No. 111/99 with explanation that the Agreement between the Faculty of Law and the student for paying scholarship and the Announcements for enrollment of students in First year of the Faculties of the “Ss.Kiril and Metodij” University for 1997/98, as well as the Resolution of the Ministry of Education of 14 June 1996 are not individual or final acts which violate right of the citizens. Another demand which was rejected because the Constitutional Courts is not competent to decide for violation of rights by some acts was the demand lodged for protection of women from discrimination during concluding religious marriage. The Constitutional Courts decided that it lacks competence to decide on violation of rights by religious books (U. no. 32/96).

32. Resolution Up-35/93.

33.  Matevz Krivic, “Ustavno sodisce: pristojnosti in postopek” in Marijan Pavcnik and Arne Mavcic (eds.), “Ustavno sodstvo”, Cankarjeva zalozba, Ljubljana, 2000, p. 169.

 34.  Janez Kranjc, “Ustavna pritozba kot institut varstva clovekovih pravic” in Marjan Pavcnik, Ada Polajnar -Pavcnik and Dragica Wedam-Lukic (eds.), “Temeljne pravice”, Cankarjeva zalozba, Ljubljana, 1997, p.401.

35.  Janez Kranjc, “Ustavna pritozba kot institut varstva clovekovih pravic” in Marjan Pavcnik, Ada Polajnar -Pavcnik and Dragica Wedam-Lukic (eds.), “Temeljne pravice”, Cankarjeva zalozba, Ljubljana, 1997, p.401.

 36. Miro Cerar, “(Ne)politicnost ustavnega sodstva” in Marijan Pavcnik and Arne Mavcic (eds.), “Ustavno sodstvo”, Cankarjeva zalozba, Ljubljana, 2000, p. 375.

1. BRZEZINSKI, Mark, “The Struggle for Constitutionalism in Poland”, Oxford: St Anthony’s College, 1998
2. DE VERGOTTINI, Guiseppe (ed.), “Giustizia constitutionale e sviluppo democraticonei paesi dell Evropa Centr-orientale”, Torina, 2000
3. GRAD, Franc, Igor KAUCIC, Ciril RIBICIC and Ivan KRISTAN, “Drzavna ureditev Slovenije”, Uradni list Republike Slovenije, Ljubljana, 1999
4. HENKIN, Louis and Albert J. ROSENTHAL (eds.), “Constitutionalism and Rights - the Influence of the U.S. Constitutions Abroad”, New York: Colombia University Press, 1990
5. KAUCIC, Igor and Franc GRAD, “Ustavna ureditev Slovenije”, Gospodarski vestnik, Ljubljana, 2000
6. KRISTAN Ivan, “Ustavna pritozba”, Pravnik, Ljubljana, Let.  47 (1992) 6-8.
7. PAVCNIK, Marijan and Arne MAVCIC (eds.), “Ustavno sodstvo”, Cankarjeva zalozba, Ljubljana, 2000
8. PAVCNIK, Marjan, Ada POLAJNAR -PAVCNIK and Dragica WEDAM-LUKIC (eds.), “Temeljne pravice”, Cankarjeva zalozba, Ljubljana, 1997
9. ROLLA, Giancarlo and Tania GROPPI, “Between politics and the law: the developments of constitutional review in Italy”, paper on the Vth World Congress on Constitutional Law, Rotterdam, 1999
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