Author(s): Dragan M. Stojanović
Subject(s): Constitutional Law
Published by: Правни факултет Универзитета у Нишу
Keywords: constitutional courts; judicial decisions; constitutional review; specific consitutional law; direct consitutional protection

Summary/Abstract: In principle, the constitutional precepts envisage that judicial decisions are not subject to extrajudicial control. However, in the course of deciding on constitutional complaints, the Constitutional Court reviews the compliance of individual legal acts and actions of state authorities with the Constitution, including court decisions on cases involving the constitutionally guaranteed rights. Hence, in order to eliminate tension or even contradiction between the constitutional precepts, the constitutional review of judicial decisions should be considered as a special form of judicial control, regardless of the fact that the Constitutional Court is not part of the judicial structure in the strict organizational sense. Thus, unlike the cases where the Court is involved in the normative control of the applicable law, in the process of reviewing judicial decision of lower courts the constitutional judiciary acts in the capacity of a specific judicial authority. According to another possible interpretation of the aforementioned constitutional norms, the direct constitutional protection of the constitutionally guaranteed rights may only be pursued in the the process of reviewing individual legal acts and actions of state authorities, but not by pursuing a judicial review of court decisions which the Constitutional Court has no jurisdiction to decide upon. Thus, the dogma of judicial independence would prevail over the dogma of direct protection of fundamental rights. The third interpretation of this relationship maintains that that judicial decisions may be subject to control but, in this specific case, the Constitutional Court may only issue an opinion (a statement) rather than a binding decision which would cancel the lower court judgment. Then, it is up to the judicial authorities of the lower instance to adjust their judicial decision, which in the opinion of the Constitutional Court constitutes a violation of the constitutionally guaranteed rights, with the Constitution. In the long-standing practice of the Constitutional Court of Serbia, this competence has been perceived as the capacity to review all individual legal acts within the general framework of the Court’s constitutional authority to directly protect fundamental human and minority rights and freedoms guaranteed by the Constitution, provided that this competence does not have the character of a last-instance control of the legal validity of the court decision in totum, in a manner exercised by higher judicial instances in regular court proceedings. With reference to these assumptions, the paper will examine and discuss the eligibility, scope, reach and limits of constitutional review of judicial decisions.

  • Issue Year: 2016
  • Issue No: 74
  • Page Range: 35-51
  • Page Count: 17
  • Language: Serbian