Implementation of Transitional Laws in Serbia 2006

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Implementation of Transitional Laws in Serbia 20064. The Constitutional CourtJurisdictionArticle 167The Constitutional Court shall decide on:1. compliance of laws and other general acts with the Constitution, generallyaccepted rules of the international law and ratified internationaltreaties,2. compliance of ratified international treaties with the Constitution,3. compliance of other general acts with the Law,4. compliance of the Statute and general acts of autonomous provincesand local self-government units with the Constitution and the Law,5. compliance of general acts of organizations with delegated publicpowers, political parties, trade unions, civic associations and collectiveagreements with the Constitution and the Law.The Constitutional Court shall:1. decide on the conflict of jurisdictions between courts and state bodies,2. decide on the conflict of jurisdictions between republic and provincialbodies or bodies of local self-government units,3. decide on the conflict of jurisdictions between provincial bodies andbodies of local self-government units,4. decide on electoral disputes for which the court jurisdiction has not beenspecified by the Law,5. perform other duties stipulated by the Constitution and the Law.The Constitutional Court shall decide on the banning of a political party, trade unionorganization or civic association.The Constitutional Court shall perform other duties stipulated by the Constitution.Constitutional AppealArticle 170A constitutional appeal may be lodged against individual general acts or actions performed bystate bodies or organizations exercising delegated public powers which violate or deny human orminority rights and freedoms guaranteed by the Constitution, if other legal remedies for theirprotection have already been applied or not specified.40
Implementation of Transitional Laws in Serbia 2006Constitutional Appeal is one of the most important institutions of theprotection of human rights 134 . The previous Constitution of Serbiawas justly disputed among other things because of the non-existenceof Constitutional Appeal. The Constitution of the Federal Republic ofYugoslavia had introduced this institution, but it was legally formulated ina way which disabled its implementation 135 . A Constitutional Appeal couldbe filed only „if no other kind of legal protection was available“ 136 . TheFederal Court decided to interpret this regulation in a restrictive way, so thatthe institution of Constitutional Appeal was useless 137 . This Constitutioncorrected the mistake, but left plenty of space for dilemma. Consideringthe experience with the Federal Constitutional Court and their restrictiveinterpretations, every possibility of something similar happening againshould have been prevented.The first and largest objection is that of leaving out the regulation on actionsupon constitutional appeals from the jurisdictions of the ConstitutionalCourt. The article on Constitutional Appeals is placed in the section onthe Constitutional Court of Serbia, which is simultaneously the only wayto interpret that this court has jurisdiction over deciding appeals. In Article167 in which the jurisdictions of the Constitutional court are listed, there isno mention of Constitutional appeals! This is by all means an unusual andillogical solution, so that a great question remains whether this detail wasoverlooked in an effort to adopt a new Constitution as soon as possible, orthe intention of the framers of the Constitution.Problems with the work of the Constitutional Court could also arise froman imprecise formulation that an appeal can be filed if other legal solutionshave been exhausted or are not specified. Comparative practice shows thatthe question of whether it is about only the regular legal cures or if specialones are taken into consideration, always arises as an important previousissue 138 . In this manner the constitutional systems of Germany and Austriastipulate the exhaustion of regular legal cures 139 , while in Croatia theexhaustion of a section of special legal cures is required as well (revision in134 More on Constitutional Appeals in: Vladimir Djuric, Constitutional Appeal, Belgrade Center for Human Rights,Belgrade, 2000135 The Constitution of SRY, adopted and entered into force on April 27 th , 1992, Official Gazette of SRYnumber 1/92136 Article 128 of the Constitution of SRY137 More on this problem in: Vesna Rakic-Vodinelic, Judicial protection of the rights of man in Rights and Freedoms– International and Yugoslavian standards, Belgrade, 1995138 Vladimir Djuric, op.cit139 Ibid41
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Implementation of Transitional Laws in Serbia 2006

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