Implementation of Transitional Laws in Serbia 2006

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Implementation of Transitional Laws in Serbia 2006Protection of Human and Minority Rightsand FreedomsArticle 22Everyone shall have the right to judicial protection when any of their human orminority rights guaranteed by the Constitution have been violated or denied, they shallalso have the right to elimination of consequences arising from the violation.The citizens shall have the right to address international institutions in order to protecttheir freedoms and rights guaranteed by the Constitution.The regulation of the protection of human and minority rights alsorepresents a setback compared to the solutions in the Small Charter. In theConstitution, it is stated that everyone has the right to judicial protection,while in the Small Charter efficient judicial protection was guaranteed 49 . Inthe European Convention, a right to an efficient legal solution is guaranteed 50 .This difference is of great significance, since not every judicial protection issufficient guarantee for the protection of human rights. On these grounds,the European Court for Human Rights has taken the position that the stateis obliged to provide not any, but efficient judicial protection 51 . In this waythis right became a part of generally accepted rules in Europe, and it isunclear why those who framed the Constitution decided to ignore it in thisway. It can also be assumed that the practice of the European Court willnot be recognized by the local judicial organs, considering the fact that it isin this case in discordance with the Constitution. This is so thanks to theArticle 16 of the Constitution, by which international contracts must be inaccordance with the Constitution!In the text of the Small Charter, along with the regulations on protection,there were also regulations on who a person can protest to in the case ofthe violation of human rights 52 . There are no such regulations in the 2006Constitution. Although it can be concluded from the fact that the regulationon constitutional appeals is placed in the chapter on the Constitutional courtthat this institution has jurisdiction over decisions on appeals, howeverthis is not explicitly stated anywhere. Moreover, in the Article 167 of the49 Article 9, Paragraph 1 of the Small Charter, see above under 3650 Article 13 of the European Convention, see above under 2951 For example, see the cases: Wille v. Lichtenstein, Aksoy v. Turkey or Klass and others v. Germany52 Article 9, Paragraph 2 of the Small Charter, see above under 3618
Implementation of Transitional Laws in Serbia 2006Constitution in which the jurisdictions of the Constitutional court are listed,there is no explicitly stated jurisdiction over the decisions on constitutionalappeals!In the Constitution of Serbia, the field of individual petitions of citizensto the international bodies for the protection of human rights is verypoorly regulated. The Constitution states: citizens have a right to turn tointernational institutions for the protection of their freedoms guaranteed bythe Constitution. In the Small Charter it was explicitly stated that the stateis obliged to carry out the decisions of the international organs, as well asto compensate for damages 53 . Also, unlike the Small Charter, which speaksof the rights guaranteed by the international contract valid in the territoryof Serbia and Montenegro 54 , the Constitution is limited only to the rightsguaranteed by the Constitution. It is unclear how the courts in Serbia willact if an international organ (for example the European Court for HumanRights) decides that a citizen’s right, which has not been regulated by theConstitution, was violated (for example the right to a private life). Will thedecisions of the court be carried out, or will Serbia have to step out of themembership in the Council of Europe?Right to Freedom and SecurityArticle 27Everyone has the right to personal freedom and security. Depriving of liberty shall be allowedonly on the grounds and in a procedure stipulated by the law.Any person deprived of liberty by a state body shall be informed promptly in a language theyunderstand about the grounds for arrest or detention, charges brought against them, and theirrights to inform any person of their choice about their arrest or detention without delay.Any person deprived of liberty shall have the right to initiate proceedings where the court shallreview the lawfulness of arrest or detention and order the release if the arrest or detention wasagainst the law.Any sentence which includes deprivation of liberty may be proclaimed solely by the court.Unlike the Small Charter, the Constitution omits an important regulationthat is an integral part of the right to freedom and security: the prohibition53 Ibid, Paragraph 354 Ibid19
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Implementation of Transitional Laws in Serbia 2006

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