Implementation of Transitional Laws in Serbia 2006

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Implementation of Transitional Laws in Serbia 2006end of the 19. Century, and accepted in practice in 1905. in the ruling ofthe Supreme Court of the state of Georgia in Pavesich v. New England LifeIns. Co 82 . A constricted understanding of the right to privacy is used eventoday in many cases, primarily as a restriction to the right to free press. 83These two rights can often be in conflict (when details from the private lifeof an individual are published), therefore it is very important to keep thesetwo rights in a balance and to not let either one of them become moreimportant. Both of these interests need to be protected. 84 One can notspeak about a balance between these two rights in Serbia because the newConstitution has eliminated the right to privacy.In this way the obligations of Serbia resulting from it’s membership inthe European Council and the obligations of the European Conventionas a ratified international document have been severely violated. Theaccomplished level of protection of human rights has also been reduced,which is explicitly prohibited by International law and the previousconstitutional solutions (this prohibition has remained also in the newConstitution) 85 . Considering the fact that Article 22 Paragraph 2 of theConstitution allows for citizens to appeal to international bodies only in thecase of the violation of rights in this Constitution, it is unclear how citizenswill appeal in the future on the violation of Article 8 of the EuropeanConvention, and whether governmental organs in Serbia will be obliged toapply the potential decisions of the Court. It is hardly necessary to pointout that not accepting the European Convention and court decisions willhave enormous negative consequences for Serbia, including the cancelingof membership in the European Council.Churches and Religious CommunitiesArticle 44Churches and religious communities are equal and separated from the state.Churches and religious communities shall be equal and free to organize independently their82 Sasa Gajin, Contemporary understanding of the concept and structure of the right to privacy in the practiceof the Supreme Court of the United States of America, published in: Institute for comparative law, Foreign legallife, Belgrade, 199183 For further reading: Sasa Gajin, Concept of Article 8 European convention for human rights, published in:Institute for comparative law, Foreign legal life, Belgrade, 199284 See for example: a case before the European Court for Human Rights: Carolina of Monaco v. Germany85 See Article 20, Paragraph 2 of the new Constitution of Serbia and Article 57, Paragraph 1of the Small Charter,see above under 3624
Implementation of Transitional Laws in Serbia 2006internal structure, religious matters, to perform religious rites in public, to establish and managereligious schools, social and charity institutions, in accordance with the law.Constitutional Court may ban a religious community only if its activities infringe the right tolife, right to mental and physical health, the rights of child, right to personal and family integrity,public safety and order, or if it incites religious, national or racial intolerance.Concerning the article which regulates the position of churches andreligious communities, Paragraph 3 which deals with the possibility ofbanning a religious community is singled out as especially controversial.Although the term „churches and religious communities“ is used in thepreceding two Paragraphs, in the third Paragraph it is explicitly stated thatthe Constitutional Court can ban only a religious community. Consistentinterpretation of this article leads to the conclusion that it is not possibleto ban the work of churches in Serbia, regardless of their activities. Inaddition to that, it is unclear how churches are defined, and how religiouscommunities are defined. The small Charter did not make this sort ofdistinction, but spoke only of religious communities 86 . If we take thedistinction between churches and religious communities from the Lawon churches and religious communities as relevant, traditional religiouscommunities are only the Islamic and the Jewish religious communities,while all Christian denominations are organized into churches 87 . Accordingto this, by the new Constitution the banning of Islamic and Jewish religiouscommunities is allowed, but not of the Serbian Orthodox Church or theRoman-Catholic Church. Such a solution is in discord not only with thealleged equality of churches and religious communities guaranteed in thefirst two Paragraphs of Article 44 of the Constitution, but also with previousconstitutional solutions which did not make this kind of distinction 88 .The list of reasons for banning a religious community is impressive.The whole new Constitution introduces the practice of legal galimatiasconcerning the reasons for the limitation of a particular right. Instead ofthe usual formulation from the European Convention where public safety,public order, health, morals and the rights and freedoms of others aremainly mentioned, the list in the Constitution is creatively widened fromone article to another. In that way we have formulations such as „the morals86 Article 27 of Small Charter, see above under 3687 Law on Churches and Religious Communities, Official Gazette of RS, number 36/06, Article 1088 Article 27 of Small Charter, Article 41 of Constitution of Serbia from 199025
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Implementation of Transitional Laws in Serbia 2006

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