Constitutional Court Of Serbia Research Articles

The Right of the Parent to Return to its Country of Origin in the Light of the Hague Convention on the Civil Aspects of International Child Abduction and the European Convention on the Protection of Human Rights

This article examines the right of return to the country of origin of a parent who has been granted the rights of custody over a child in the country in which that parent and the child temporarily reside. A legal obstacle to realization of the right of return of the parent to its country of origin exists in the Hague Convention on the Civil Aspects of International Child Abduction which is often applied mechanically and works to prevent the parent from relocating with the child. Case law of the European Court of Human Rights and the Constitutional Court of Serbia provides guidelines for interpretation of the Hague Abduction Convention in quite frequent situations when a parent who is a primary caregiver acts as an abductor. The standard of the best interest of the child can overcome the tension between the right of parent to return and the Hague Abduction Convention.

Načelo koherentnosti u odlukama Ustavnog suda Srbije o jedinstvu pravnog poretka

Articles 4 and 194 of the Constitution of the Republic of Serbia prescribe that the legal order of Serbia is unique. Interpreting this constitutional principle, the Constitutional Court of Serbia has developed a doctrine on the distinction between systemic and ordinary laws, based on the primacy of systemic laws over ordinary ones. Ordinary law must be in accordance with the systemic law because otherwise it is unconstitutional. Explaining its position, the Constitutional Court claims that the constitutional principle from article 4 requires that all laws be in accordance (consistency) and act in the same direction (coherence). We will analyze the principle of coherence, its relationship with consistency, and then apply those insights to the doctrine of the Constitutional Court, in an effort to determine the merits of such a distinction. The main hypothesis from which the paper starts is that the Constitutional Court gives absolute primacy to the principle of unity of legal order, which we consider axiologically acceptable but unacceptable from positive law aspect, since this principle must be considered in the light of other principles, especially in the light of separation of powers.

Constitutional Court as Constitutional Complaint Institution: Evidence from Serbia

Abstract A noticeable increase in the scope of powers of the constitutional supervisory body of Serbia is directly related with a qualitative change in the status of the Constitutional Court. The purpose of the article is to analyse the competences of the Constitutional Court of the Republic of Serbia in protecting rights and freedoms as the most important area of its activity. The article presents a study of the increased powers of the Constitutional Court of the Republic of Serbia, the purpose of which is to protect rights and freedoms. The leading method in this study is the system analysis method, which allows us to assess the significance of the constitutional complaints institution in Serbia. Studying the current regulation of the competence of the Constitutional Court of Serbia, the author concludes that the significantly expanded competence of the Constitutional Court of Serbia fully reflects its status as a constitutional body representing the fourth judicial control authority in the state. It also ensures the supremacy of the Constitution and protects the foundations of the constitutional system of Serbia, including protection of rights and freedoms in the Republic of Serbia.

Zabrana proterivanja (non-refoulement) u praksi Ustavnog suda Srbije u svetlu opšteprihvaćenih pravila međunarodnog prava - od prihvatanja do neprimenjivanja

The absolute prohibition of torture and other forms of ill-treatment stands as one of the most fundamental values of democratic societies and represents the peremptory norm of international law. The respect of this prohibition implies non-refoulement - an obligation of the States to refrain from sending individuals back to the territory of the receiving countries where substantial grounds have been shown for believing that the person in question, if removed, would face ill-treatment. Taking into consideration that the jurisprudence of the European Court of Human Rights has significantly developed in the last two decades, the principle of non-refoulement has become one of the most exciting human rights topics worldwide. The Constitution of Serbia stipulates that the generally recognized rules of the international law form an integral part of Serbian legal system, including the rules of international customary law. Moreover, interpretation of the human rights provisions of the Constitution must be conducted in line with the practice of regional and universal human rights bodies. The author of this paper analyses to which extent the Constitutional Court of Serbia has managed to successfully apply the human rights standards developed in the jurisprudence of the European Court which relate to the principle of non-refoulement with regards to the safe third country concept.

Verfassungsgerichtsbarkeit in Serbien

Constitutional adjudication in Serbia can look back on a more than 55 year-long history. Through this history, however, the Constitutional Court of Serbia and its work have been subject to substantial changes. This not only concerns the constitutional and statutory provisions relating to the Court itself, but also the Serbian polity as a whole in which the Court fulfils its function. This article describes the development of constitutional adjudication in Serbia and analyses the current organisation and competences of the Constitutional Court of Serbia. In the course of this analysis, the existing provisions on the Constitutional Court of Serbia are compared to the corresponding legal rules on the Constitutional Courts of Austria and Germany, respectively. The Serbian Constitutional Court’s case law and its factual impact reveal, that a Constitutional Court’s authority significantly depends on the way political actors and a society as a whole uphold and ‘live’ a constitutional order.

Granice ustavnosudske kontrole sudske vlasti - neka otvorena pitanja

In most states that have a centralized system of constitutional control, there is tension in the relations between the Constitutional Court and ordinary courts. The fundamental question raised in this regard is weather the Constitutional Court, acting on a constitutional complaint, may enter into the domain of application of law. The manner and conditions for exercising the constitutional rights are regulated by the law. In this respect, it seems that the Constitutional Court may, to a certain extent, examine the legal shortcomings of a court decision in order to substantively assess the alleged violation of the specific constitutional right stipulated in the constitutional complaint. The legal attitudes formulated by the Constitutional Court of Serbia clearly show that the Constitutional Court has exercised self-restraint in this area. The Constitutional Court can act only in cases of gross violation of procedural and substantive law. However, the analysis of Constitutional Court decisions as well as the separate opinions of constitutional court judges shows that the self-restraint of the Constitutional Court has not been consistently applied in each particular case. The problem of the relations between the Constitutional Court and ordinary courts must necessarily be viewed in a broader constitutional context and cannot be solved at the normative level only.

THE ELEMENTS OF PROPORTIONALITY AS A PRINCIPLE OF HUMAN RIGHTS LIMITATIONS

The article discusses the elements of proportionality as the most important requirement that must be satisfied in the limitation of human rights. There are four major elements of this principle: legitimacy, adequacy, necessity, and proportionality stricto sensu. Legitimacy means that limitation must pursue a legitimate aim. Adequacy means that the chosen measure must be suitable for achieving that aim. Furthermore, the government may only use the least restrictive measure for achieving the aim, the one that causes least damage to protected rights and interests. In order to be deemed proportionate, the limitation must satisfy the test of proportionality stricto sensu, which means that achieving a particular aim must be important enough to justify the damage which will be caused to individual rights. This article particularly focuses on the application and the significance of these elements in the case-law of the European Court of Human Rights and the Constitutional Court of Serbia.

On the Margins of Consolidation: The Constitutional Court of Serbia

This article argues that the Constitutional Court of Serbia has only marginal role in political and legal life of the Serbian society and, consequently, very modest impact on the process of democratic transition and consolidation. This conclusion is drawn on the basis of the analysis of the Court’s institutional design, substantive constitutional framework and selected cases that involved thorny constitutional and political issues, as well as issues of the country’s compliance with European standards of parliamentary democracy and human rights protection. The article demonstrates how the Court’s deference to the political majority in power and, in particular, the delaying and avoiding strategies it employs, make it irrelevant in the process of democratic consolidation. Yet, the Court plays a more relevant role in the field of the protection of human rights (constitutional complaints competence). However, these are cases which usually do not involve major political interests, so the Court can rule without constraints, relying on the jurisprudence of the European Court of Human Rights, although not always consistently and aptly. Finally, the article demonstrates that the Court’s legitimacy is weak. In respect to the input legitimacy this is due to the non-transparent process of selection of justices and disregard for the selection criteria. Perceptions of the Court by the general and expert public also reveal that it lacks both sociological and normative legitimacy. Moreover, the output legitimacy is poor, since the effect of the Court’s decisions in the articulation of the dominant political values in Serbian society is close to insignificant.

International law aspects of the decision of the Constitutional court of Serbia on constitutionality and legality of the Brussels agreement

This article deals with international law aspects of the decision of the Constitutional Court of Serbia (CCS) to dismiss a request for assessment of constitutionality and legality of the First agreement of principles governing the normalization of relations (Brussels Agreement) accepted by representatives of Serbia and Kosovo on 19 April 2013. CCS ruled inter alia that it did not have jurisdiction to consider constitutionality and legality of the Brussels Agreement since it was not a ratified international treaty, but a political agreement. The authors consider that the CCS ruling was correct one, but that its reasoning was flawed from international law perspective. CCS chose to determine the nature of the Brussels Agreement starting from the definition of international treaty in the Vienna Convention on the Law of Treaties, which inter alia provides that international treaty is an international agreement concluded by states. This led to a discussion of whether Kosovo is a state, in which CSS adopted positions that are at variance with applicable rules of international law. The authors then show that CSS had at least two different lines of reasoning that would lead it to the same conclusion, but without the problems inherent in the approach actually chosen by the court. In particular, the conclusion that the Brussels Agreement is a political agreement can be reached through customary rules of interpretation contained in the Vienna Convention on the Law of Treaties.

Environmental impact assessment in Serbian legal system: Current issues and prospects for revision

This paper analyses current issues regarding the environmental impact assessment procedure (hereinafter: EIA). The author analyses the legal nature of the decisions made in the EIA procedure and points out the problems which in practice raise the question of whether an EIA should be organized as three independent administrative proceedings or as one comprehensive procedure. In answering the question of whether the appeal is an effective legal remedy in the EIA procedure, special attention was paid to the analysis of the practice of the Administrative Court and the Constitutional Court of Serbia. In the concluding observations, the author points out preconditions for the establishment of a new EIA system.

The Constitutional Court in light of interpretive decisions in normative control proceedings

In a legal system based on the principle of the separation of powers, constitutional judicature is necessarily (given the nature of its social function) at the intersection of law and politics. Thus, constitutional judiciary is required to preserve political neutrality, particularly in relation to political (legislative and executive) authorities. The paper analyzes the principal issues pertaining to constitutional court interpretation, particularly in light of observing the principle of the separation of powers that the constitutional judiciary is bound to abide by and considering the role of the constitutional court as an institution standing at the intersection of law and politics. Every constitutional court is required to be politically neutral and independent from daily politics, which is the major factor in delineating not only the overall boundaries of the constitutional control of the normative framework but also in ensuring the independent and unbiased activity of the constitutional court in the process of interpreting the Constitution and the laws. The constitutional control function shall not be politicized, and it must be exercised only through legal reasoning. Consequently, in the process of constitutional interpretation, the Constitutional Court of Serbia has to develop and consistently pursue a doctrine of self-restraint, thus refraining from politically-driven assessment which is the exclusive duty of political authorities. A closer examination of the doctrine of self-restraint in recent constitutional practice shows that the most prominent elements of this doctrine are relatively new interpretative constructions and legal formulations of constitutional court, which reinforce not only the political neutrality of the constitutional judiciary but also its role as 'the negative legislator'. Yet, some of these constructions may be challenged because their excessive and often inadequate application has resulted in a kind of 'self-deprivation' in cases where the Constitutional Court may have had to abandon its primary constitutional mission and even 'tolerate' unconstitutional activity. In particular, this refers to the constructs such as 'a matter of legislative policy ' and a highly dubious term 'political acts' which are eo ipso excluded from constitutional control. On the other hand, when it comes to interpretative decisions, which rest on the dogmatic principle of statutory interpretation aimed at establishing the compliance of laws with the Constitution, the interpretation results may 'save' the legal act from being declared unconstitutional and invalid. In that case, the main problem is that the Constitutional Court has a slightly different role of shaping the positive law; thus, the practice of resorting (too frequently) to interpretative decisions does not lead to the optimal exercise of the Constitutional Court mission. Therefore, we can conclude that the constitutional jurisprudence (which includes only a few interpretative decisions) does not seem to entail a 'dangerous' divergence of the Constitutional Court from its constitutional mission, nor does it significantly affect the principal Constitutional Court activities.

Right to privacy and legal recognition of gender identity in Serbia: Constitutional Court of Serbia at work

This paper discusses different issues pertaining to a 2012 landmark decision of the Serbian Constitutional Court on the legal recognition of surgical gender reassignment. In this case, the SCC made a substantial contribution to the protection of human rights, in general, and an important contribution for the protection of the rights of transgender persons, in particular. The former was achieved by the interpretation that art. 23 of the Constitution on the right to dignity and free development of individuals included protection of the right to privacy and family life (which was omitted in the list of rights guaranteed by the Constitution), interpreting the scope of this right in accordance with ECtHR standards. The latter was done by analogous application of the existing Act on Public Registries to situations in which medical gender reassignment was conducted to enable the necessary changes be made in the birth register. By the virtue of this, the SCC took an active approach in filling a lacuna in the Serbian legal system. This paper also strives to examine impact of the SCC decision on the protection of rights of transgender persons and the current normative setting in respect to this vulnerable group in Serbia. It shows that the decision of the SCC remains the only legal basis on which transgender persons who have undergone a gender reassignment operation in Serbia can rely upon. However, bearing in mind Serbia’s EU aspiration and the fact that the EU Commission has been continuously noting that Serbia lacks of regulation in this field one should expect improvements, since EU integration seem to be the most effective tool for legislative and policy changes in Serbia.

Veterans before the European Court of Human Rights: Vučković and others against Serbia

This paper investigates the case of Boban Vuckovic and others before the Serbian judiciary, Constitutional Court of Serbia and the European Court of Human Rights, which was induced by Serbian Government's lack of recognition of the right to a fair remuneration to the military reservists-veterans of the armed conflict in 1999. in former Yugoslavia. The judicial restrictive approach in interpretation and application of anti-discirimination law norms (contrary to the principle iura novit curia) was criticized. Certain solutions were proposed in accordance with international standards, based on non-discriminatory treatment of military reservists in relation to other persons who perform public service, and on obligation to a just satisfaction due to violation of personality rights contained in physical and psychological attrition in military service during the war.

The protection of personal data and the exercise of rights relating to health care: Analysis of a decision of the Constitutional Court of Serbia

The protection of personal data and the exercise of rights relating to health care: Analysis of a decision of the Constitutional Court of Serbia

Deciding by discretionary power on application for admission to the citizenship of the Republic of Serbia: The limits of the constitutional control

The paper analyzes the boundaries of constitutional normative control of law provisions which authorize the administrative authorities to decide cases on discretionary power. The reason for this analysis is an example of the practice of the Constitutional Court of Serbia which tested the constitutionality of provision of the Law on Citizenship of the Republic of Serbia. Provision that was the subject of constitutional normative control included deciding on the application for admission or termination of citizenship on the base of discretionary power of the Ministry of Interior. The aim of analysis is to point out the failures and problematic places in the Court's decision in the sense of omitting the essential issues relevant to the subject of the proceedings; the missing sharpness of legal arguments on which decision was based; the insufficient clarification of the Court in the respect of allegations of the initiative; and finally, and the most importantly, the lack of pointing on the nature and significance of the administrative act which is adopted on the base of discretionary power from the standpoint of general interest.

Statute of Autonomous Province at the Constitutional law of the Republic of Serbia

There is a pending procedure in which the Constitutional Court of Serbia is deciding on the constitutionality and legality of the Statute of the Autonomous Province of Vojvodina. The Constitutional Court is facing a complex, politically sensitive and legally demanding case. Bearing in mind the vagueness and contradictions of the text of the 2006 Constitution on the provincial autonomy, the decision of the Constitutional Court will constitute also a political choice, choice between competing values of the constitutional order of Serbia. This essay aims to offer answers to some questions and dilemma before the Constitutional Court based on a complex analyses of relevant sources of constitutional law, applying various methods. In the first part of this article, the Decision of the Constitutional Court on the constitutionality of the Law on the competencies of the Autonomous Province of Vojvodina from July 2012 is analysed, in second, the legal character, power and subject of regulation of the Statute of APV is elaborated, in third, the constitutionality of the organization of provincial authorities is analysed, in forth arguments of the initiator based on terminological differences and the issue of national equality will be analzyed while in fifth, some conclusions are formulated. Conclusions of this essay are that wide and deep analyses of relevant constitutional law sources, adequate application of scientific methods reveal that many arguments used to prove unconstitutionality of the Statute are not well grounded, and they are supported mainly by gramatical arguments only, furthermore they are neglecting the specific - sui generis character of the Statute as a basic and highest legal act of the Autonomous province of Vojvodina, enacted by the Assembly of Vojvodina and National Assembly of Serbia. The forthcomming decision of the Constitutional Court will not resolve all the shortcommings of the Constitution, however, if well grounded, it can promote rule of law in Serbia and ease political tensions between various levels of government.

Passion according to the statute: Will the textual dogmatization of the constitution abolish the political autonomy of Vojvodina?: Contribution to the public debate on constitutionality and legality of the Vojvodina's Statute

Before the Constitutional Court of Serbia, there is a pending case on reviewing constitutionality and legality of the Autonomous Province of Vojvodina's Statute. 30 MPs, one civic organization and one individual initiated the proceedings, back in 2009, right after the Statute came into force. This article, which relies on author's amicus curiae brief in the mentioned case, offers three claims. First, the author claims that Serbia is not a typical unitary state, as for example, France or Romania, since it has gained several important characteristics of a regional state. Thus, for the time being, according to a vertical division of authority, Serbia can be defined as a state that is neither unitary nor regional, but rather a state 'in between' these two forms. Second, the author argues against an idea of textual dogmatization of the Constitution employed by the initiator of the proceedings (MPs), and after a deep analysis, rejects most of the arguments aimed at invalidating the provisions of the Statute, finding them unpersuasive and unfounded. Third, starting from the citizens' sovereignty, on which the political autonomy of Vojvodina is based (Articles 12, 176 and 182 of the Serbian Constitution of 2006), the author urges safeguarding the political decentralization guaranteed by the Constitution, since it gives more power to citizens in public decision-making and strengthens the democratic principle on which the Republic of Serbia is based. It is also stressed that a potential invalidation of the statutory provisions concerning the protection of national minorities, would endanger this protection, since, in accordance with the principle of subsidiarity, the constitutional protection is the most effective if implemented by the act of the regional authority of the territory where the members of national minorities traditionally live in a great number.

Tax duties and entry into the cadastre of real estates: Commentary following the decision of the Constitutional Court of Serbia

This article describes what happened to the rule according to which it was not possible to register property and related rights into the registry on real estates without a prior fulfillment of tax duties related to the transfer of property rights, as well as tax duties in relation to inheritance and donations. Inadequacy of this rule and its incompatibility with our legal system has been assessed through its inconsistency with the Constitutional guarantee on the peaceful enjoyment of property, but also with the property law. Along the same lines the article follows the reasons given by the Constitutional Court in its decision on the inconsistency of the given rule with the Constitution in which the Constitutional Court opined that the rule that was struck down was also contrary to certain principles of the cadastre on real estates, such as the principle of the entry into cadastre. Regardless of the fact that the old rule significantly facilitated tax collection, this still cannot justify its existence and should not serve as the ground for a possible (third) re-introduction of this rule into the system.