Constitutional Complaint in Germany as a Model for Constitutional Complaint in Serbia – Source of Problems and Solutions Cover Image

Ustavna žalba u Nemačkoj kao uzor ustavne žalbe u Srbiji - izvor problema, ali i rešenja
Constitutional Complaint in Germany as a Model for Constitutional Complaint in Serbia – Source of Problems and Solutions

Author(s): Miloš Stanić
Subject(s): Constitutional Law, Public Law
Published by: Fondacija Centar za javno pravo
Keywords: constitutional complaint; Germany; Serbia; Federal Constitutional Court; Constitutional Court of Serbia; ordinary courts; subsidiarity;
Summary/Abstract: A constitutional complaint in the Republic of Serbia, which is modeled in accordance with the German constitutional complaint, was introduced by the Constitution of Serbia in 2006. Bearing that in mind, it seems useful, after thirteen years to pay attention to certain problematic aspects of its implementation, from the perspective decennial practice of the Federal Constitutional Court of Germany. This refers, first of all, to a certain ‘strained’ relationship between the Constitutional Court and the regular courts when deciding on constitutional appeals filed against decisions of the regular courts. Also, in the paper the author considers the realization of the principle of subsidiarity, which also contributes to making this relationship more relaxed, paying special attention to the so-called material subsidiarity, developed in the practice of the Federal Constitutional Court. These problems existed and to some extent still exist in Germany. Their solutions are sought both at the theoretical and at the level of practice of the Federal Constitutional Court, which has, over the course of many decades, developed certain standpoint on these issues. In doing so, the author tries to find solutions to the problems or dilemmas expressed in Serbia by looking into the role-model-country, Germany. Finally, the author concludes that, when it comes to disagreement over the relationship between the constitutional and ordinary courts, it is in fact false dilemma, because each of these state bodies has its clearly limited function, that is, jurisdiction. It is the utmost wisdom and imperative that these boundaries should not be crossed, and the aim of this paper is to make a modest contribution to this endeavour.

  • Page Count: 13
  • Publication Year: 2019
  • Language: Serbian