Series:Fondacija Centar za javno pravo - Projekti

The disadvantages and good sides of the report of the International Crisis Group entitled "What does the Republika Srpska want?"

Nedostaci i dobre strane izvještaja Međunarodne krizne grupe pod nazivom: „Šta želi Republika Srpska?“

Author(s): Amela Kadrić / Language(s): Bosnian

Keywords: BiH; Public law; judiciary; entities; RS; international crisis group; report; evaluation; politics; media; corruption;

Izvještaj Međunarodne krizne grupe određene oblasti obradio je jako dobro i skrenuo pažnju na niz značajnih problema koji su jasno uočljivi u ovom entitetu, poput snažne centralizacije ili problema sa aktuelnom vlašću u odnosu prema opoziciji. Ipak, Izvještaj sadrži niz manjkavosti. One se očituju u metodološkoj slabosti koja proizlazi iz anonimnih izvora i nejasnih referenci „sa terena“ koje ne pružaju osnov za vjeru u njihovu vjerodostojnost i autentičnost. Kontradiktornost u Izvještaju koja se očituje u činjeničnim utvrđenjima do kojih je ICG došao vršeći svoje istraživanje i Preporukama koje su u potpunosti suprotne tim utvrđenjima također su značajan nedostatak Izvještaja. Propusti sa preporukama za koje nije jasno zašto su upućene vladi RS ili predsjedniku RS, ili ilustruju naznačenu kontradiktornost veliki su nedostatak Izvještaja. Manjkavost Izvještaja je i u njegovoj jednostranosti koja je evidentna iz propusta da budu obrađene značajne oblasti poput pravosuđa, medija, statusa državne imovine, policije,...Posebno je zabrinjavajuće da je ICG podatke o problemima u ovim oblastima u toku istraživanja dobivao iz različitih izvora, od kojih su neki, kako je naznačeno, praktičari iz tih područja koji su prenosili svoja iskustva, a da na to uopće nije skrenuo pažnju javnosti. Također, falsificiranje stvarnosti koje se očituje u činjeničnim navodima koji se odnose na pitanje početka rata u BiH, trenutnih emocija građana RS prema BiH kao državi, navodima o nacionalizmu koji pogoduju secesionističkim motivima RS, predstavljaju vrlo značajan propust Izvještaja. Zaključno, Izvještaju generalno nedostaje koherentnost obrađenih cjelina koja onemogućava čitatelja da lako uprati sve probleme koje su analitičari sa terena uočili. Bilo bi dobro da su svi problemi iz određene oblasti naznačeni na jednom mjestu i da čitatelji ne moraju trošiti dodatno vrijeme da povezuju navode iz jedne oblasti sa drugom kako bi saznali barem dio informacija o nekom problemu koji je uočen. Tako npr. problem s medijima ili policijom postaje jasan tek kada se izvrši analiza svih navoda iz Izvještaja što može zbuniti ili dovesti do nejasnoća.

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About the Report of the Helsinki Committee on Human Rights in Bosnia and Herzegovina

O Izvještaju Helsinškog komiteta za ljudska prava u Bosni i Hercegovini

Author(s): Amela Kadrić / Language(s): Bosnian

Keywords: Public law; Helsinki Committee; report; BiH; human rights; social rights; media; discrimination; evaluation;

Analizirani Izvještaj je formalno i sadržajno nepotpun. Nedostaci su: neprecizna metodologija analize, nejasni, apstraktno paušalizirani i netačni podaci. Samo bi tačni podaci omogućili rad na poboljšanju problema koji su uočeni u prethodnoj godini i koji zahtijevaju da se svakodnevno rješavaju. Svi podaci u Izvještaju, bez obzira na stepen tačnosti, moraju počivati na jasnim i konkretnim referencama, uputama i imenima, odnosno na relevantnim podacima koji omogućuju individualizaciju slučaja. Nije sporno da diskriminacija postoji i da je sveprisutna. Sporan je, međutim, metod! Izvještaj ne smije započinjati zaključkom koji nema korespodentno objašenjenje. Odmah se otvara pitanje na osnovu čega je zaključak izveden. Takav „metod“ nema dodirnih tačaka sa realnim i stručnim Izvještajem eksperata na koji se mogu osloniti socijalne strukture, NGO's i međunarodne organizacije. Konačno, ozbiljan nedostatak Izvještaja je jezik: to je jezik politike koji nema uporište u činjenicama.

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Entity Referendum on Cases of State Jurisdiction and Formation of Authorities in the Federation of BiH

Entitetski referendum o predmetima iz državne nadležnosti i formiranje vlasti u Federaciji BiH

Author(s): Author Not Specified / Language(s): Bosnian

Keywords: Public law; constitution; Constitutional court; BiH; entities; RS; referendum; FBiH; government; jurisdiction;

Vlast u Federaciji BiH je formirana u skladu sa Ustavom Federacije BiH. Osporavanje uspostavljene federalne vlasti argumentom legitimiteta ne predstavlja ustavnu ni zakonsku kategoriju. Jer, izbori u Bosni i Hercegovini nisu provedeni etničkim izjašnjavanjem već putem neposrednih i slobodnih izbora građana F BiH. Djelovanje CIK-a je potpuno ignorisalo Odluku Ustavnog suda BiH u predmetu broj U 5/05 i predstavlja ozbiljan osnov za postavljanje pitanja o budućnosti i daljnjem radu ove institucije kao i o detaljnijoj razradi izbornih pravila u odnosu na posredne izbore. Ova institucija se našla u poziciji da tumači ustavne odredbe. Na tom putu je zanemarila odluke Ustavnog suda BiH i time osnažila djelovanje političkih partija koje su opstruirale formiranje vlasti u Bosni i Hercegovini. Pri tom CIK-a nije ispunila nadležnosti koje joj je dao Izborni zakon BiH i nije sankcionirala političke partije i osobe koje su vršile blokade u izbornom procesu.

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Conclusions from the expert discussion with foreign participation Evaluation of the work of judges and prosecutors in BiH (Sarajevo, 29. 05. 2018)

Zaključci sa stručne rasprave sa inozemnim učešćem Vrednovanje rada sudija i tužilaca u BiH (Sarajevo 29. 05. 2018)

Author(s): Edin Šarčević / Language(s): Bosnian

Keywords: BiH; judiciary; judges; prosecutors; evaluation; expert discussion; 2018;

Conclusions from the expert discussion with foreign participation Evaluation of the work of judges and prosecutors in BiH (Sarajevo, 29. 05. 2018)

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System of Prosecutorial Evaluation and its Consequences

Uspostavljeni sistem vrednovanja rada tužilaca u Bosni i Hercegovini i njegove posljedice

Author(s): Džermin Pašić / Language(s): Bosnian

Keywords: BiH; system of prosecutorial evaluation; consequences; judiciary; prosecutor;

Understanding the importance of the prosecutor’s role in the reformed criminal justice system in Bosnia and Herzegovina is the cornerstone in ensuring more efficient work of prosecution service in B&H, and thereby more efficient suppression of crimes in general. One of the instruments that could ensure more efficient work of prosecution is the objective, purposeful and simulative evaluation of prosecutors’ work. System of prosecutorial evaluation in Bosnia and Herzegovina in its essence is not in line with the basic principles and purpose of criminal proceedings. The established system that is based on few selected criteria must be changed. New concept should take into consideration the new position of the prosecutor in the reformed criminal justice system, and all qualitative criteria that go along that position. All criteria that cannot be influenced by the prosecutor must not be taken into consideration.

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Evaluation system of prosecutor's work in Bosnia and Herzegovina

Sistem normiranja rada tužilaca u Bosni i Hercegovini

Author(s): Demirel Delić / Language(s): Bosnian

Keywords: BiH; judiciary; prosecutors; work evaluation; evaluation system; HJCP;

The purpose of this paper is to present legal framework for individual and colective evaluation of prosecutors in the Bosnia and Herzegovina, criteria used for evaluation (quantity and quality criteria), bodie involved in these procedures (High Judicial Council and Prosecutorial Council of Bosnia and Herzegovina) and it's power. The main question arising from current legal framework is: what are the consequences of current particular evaluation criteria of prosecutors based on quantity and quality, does it de/stimulate best prosecutors to work harder and with more quality? The aim of assessing the work of a prosecutor will be presented within the scope of this article as well. Legal basis for the evaluation of prosecutor performance is set out in the provisions of the Law on the High Judicial Council and Prosecutorial Council of Bosnia and Herzegovina. Further and more detailed description is provided in the implementing act, issued by the High Judicial Council and Prosecutorial Council of Bosnia and Herzegovina on the basis of the legal authority. Criteria and measures for the evaluation comprise „prosecutor norms“ according to which a check is made whether the prosecutor solved the prescribed number of cases in the course of a year, and with what quality of those decisions, altogether with „work ethics“. Argumentation in the paper is based on statistic of Prosecutor's Offices in Bosnia and Herzegovina, and it's evaluation. In conclusion, the Bosnia and Herzegovina is a state where a system of formal evaluation is applied, wherein the assessment is based on the scoring principle. The paper is based on a finding solution/constructive criticism for improvement of the current evaluation system.

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The Constitutional changes in the Republic of Serbia with special emphasis on the Working Version of the Draft Amendments to the Constitution of the Republic of Serbia in the part relating to the judiciary

Ustavne promene u Republici Srbiji sa osvrtom na radni tekst amandmana Ministarstva pravde na Ustav Republike Srbije u delu koji se odnosi na pravosuđe

Author(s): Maja Prelić / Language(s): Serbian

Keywords: Serbia; Constitution; changes; draft amendments; judiciary; EU integration;

Within the EU Accession process, the Republic of Serbia, by adopting the Action Plan for the Chapter 23, undertook the obligation to amend its Constitution in the part related to the judiciary. In this regard, the Ministry of Justice drafted and, on January 22nd, published the Working Version of the Draft Amendments to the Constitution of the Republic of Serbia taking into account the summary of six-month long consultative process with civil society conducted during last year. This paper analyzes new solutions that have been proposed by the Working text, as well as the most significant differences between them and the current Constitution. Among other things, the Working text proposes the exclusion of the National Assembly from the appointment process of judges, the removal of the probationary period for judges, revised composition and expanded jurisdiction of the High Judicial Council. Some of the proposed solutions were very welcomed by the public while others are strongly criticized. Anyway, the path between the Working text and the adoption of the Constitution is very long and all stakeholders, including the Government, civil society and the academia, need to put the effort to achieve the best result at the end, which is, naturally, to have an independent and accountable judiciary at the service of citizens.

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The causes of presidentialization of parliamentarism and the scope of constitutional engineering in the Republic of Serbia

Uzroci prezidencijalizovanja parlamentarizma i dometi ustavnog inženjeringa u Republici Srbiji

Author(s): Darko Simović / Language(s): Serbian

Keywords: parliamentarism; Serbia; Constitution of Serbia; horizontal organization of powers in Serbia; president;

Since the establishment of parliamentarism in Serbia in 1990, this system of government did not function in the manner foreseen by the framers of the constitution. Instead of being a neutral and arbitrary power, the President of the Republic is in practice, for the most part, a primary power dominating over the constitutional system of Serbia. The 2006 Constitution of Serbia did not introduce significant novelties in the area of horizontal organization of powers. The system of powers is still susceptible to presidentialization and its functioning in practice, first and foremost, depends on non-institutional factors. The major weakness of the horizontal organization of powers in Serbia is the inconsistency in the constitutional modeling of the position of the President of the Republic. The President is envisioned as an arbitrative power that should be harmonizing the work of the parliament and the government. However, past political practice dictates that the President of the Republic has never in the true sense of the word effectuated such a role because there is a discord between direct political legitimacy and the competences which are at his disposal. This paper discusses the thesis that the acceptance of a semi-presidential system, along with the securing of political neutrality of the President of the Republic, could be an efficient solution for political circumstances in Serbia. In any case, it is necessary to simultaneously strengthen the political and legal culture, because the noninstitutional factors are of cardinal significance for harmonious functioning of the established system of powers.

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The Separation of Powers in the Serbian Constitutional System: Possibility of Balance

Podela vlasti u ustavnom sistemu Srbije: mogućnost ravnoteže

Author(s): Irena Pejić / Language(s): Serbian

Keywords: Separation of Powers; Serbian Constitutional System; principle of trichotomous separation of powers; legislative and executive branch of government;

The main goal of this paper is to show how the framers of the Constitution can elaborate the basic core of parliamentarism in different varieties in order to achieve the objectives of balance in the system of separation of powers. There is a wide range of acceptable theoretical possibilities and solutions, but one should not ignore the non-legal factors which have significant impact on the constitutional authorities and the expected or assumed objectives of their public functions. The principle of trichotomous separation of powers, its balance and mutual relations between the authorities are being developed under the influence of the political game rules, at a given time and within the framework of the current constitutional system. These issues constitute the connective tissue of the organizational and functional scheme of the separation of powers. Due to the different conditions underlying the frame for developing this constitutional principle and many controversies encountered in practice, there is a need in new democracies to reconsider the classical theory of separation of powers. In that context, the author analyzes the relations between political authorities in the legislative and executive branch of government, in light of the normative framework provided by the Constitution of Serbia (2006). The analysis of the constitutional arrangements is accompanied by proposals for amending and potentially establishing a new system of separation of powers.

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Parliamentary Questions in Serbian National Assembly

Poslaničko pitanje u srpskom parlamentu

Author(s): Maja Nastić / Language(s): Serbian

Keywords: Parliament; political control; Serbia; government; modern state of law; representatives;

The political control that the Parliament exercises over the executive power, above all, over the government, is a traditional prerogative of the parliament, as a representative body in the parliamentary system. Parliamentary questions are one of the instruments of this control. Parliamentary questions have a long tradition and, despite all the changes that take place nowadays, they have kept their actuality they had at the beginning. Moreover, studies on parliamentary questions show that this activity is a significant increase. The parliamentary question in Serbia have been part of our parliamentary system since the 19th century, but they did not take proper place even now in the 21st century. Although in recent years there has been a noticeable shift in the institute, it has not yet been built in a way that corresponds to the contemporary parliamentary system. Therefore, the control that is carried out in this way is not complete and does not realize the goal. Members of Parliament are not able to use this instrument to influence the government’s agenda. Bearing in mind the normative framework, and especially the practice of asking the parliamentary question, it is clearly noted that the Question time in Serbia is very rarely maintained and there is no frequency of maintenance as in other systems. The reasons for the insufficient implementation of this institute are the weak opposition, but also the electoral system, which allows MPs to be completely alienated from thier voters. A modern state of law can be imagined without the political competition of the ruling party and the opposition, and the important instrument of this competition are parliamentary questions. In this sense, if we want to develop parliamentary system, then this instrument of parliamentary control must be also developed.

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Electoral and party system as a factor of presidentialisation of parliamentarism in Serbia

Izborni i partijski sistem u funkciji prezidencijalizacije parlamentarizma u Srbiji

Author(s): Milan N. Jovanović / Language(s): Serbian

Keywords: election formulas; duration of term of office; possibility of re-election; position of the president in semi-presidential systems; constitution;

This article presents an over-view of the comparative researches that examine how different election formulas, duration of term of office and possibility of re-election reflect on the position of the president in semi-presidential systems. These findings are used as a framework for analyzing the presidential election cycles in Serbia. Our study of the subject shows how direct presidential elections, a fragmented party system, the lack of inter-party democracy, the fusion of the role of head of state and head of party all allow for the president to acquire a great deal of political power despite the lesser role prescribed by the constitution. This means that by controlling his own party, the President can in turn have a great deal of influence on the legislative majority and the cabinet of ministers. As a result the president becomes not only the most powerful element of the executive, but effectively the most powerful institution in the political system. The proposed solutions include redesigning the constitution by either abolishing the direct elections for the head of state and introducing a ban on the president simultaneously acting as chief of party, or a thorough redesign of the semi-presidential model of government by increasing the power of the president.

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Incompatibility of the presidential function with membership and leadership in political parties - the Serbian case

Nespojivost funkcije predsednika države sa članstvom i vođstvom u političkoj stranci-primer Srbije

Author(s): Miloš B. Stanić / Language(s): Serbian

Keywords: president of the state; incompatibility; political party; national unity; Serbia; comparative; governance functions;

The aim of this paper is to examine whether membership in a political party is incompatible with the function of the president of the state. The issue is especially important in context of the previous experience in Serbia. This question gains special importance because the Serbian constitution, as well as the constitutions in comparative law, determine the head of state as the guarantee of the national unity. Consequently the question emerges if the president, who is at the same time a member of the party, can properly fulfill this function? In order to examine all these dilemmas, the term and the legal nature of political parties are examined, as well as the notion of imaginary national unity, which the president is supposed to present. All the theoretical findings are put in comparison with the Serbian law and practice, as well as European. Finally, at the very end, based on previous conclusions, recommendations of possible new solutions in Serbia are presented.

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Conclusions and Recommendations: Presidentialization of Parliamentaryism in Serbia

Zaključci i preporuke: prezidijalizacija parlamentarizma u Srbiji

Author(s): Author Not Specified / Language(s): Serbian

Keywords: parlamentiarysm; Serbia; scientific conference; political system; conclusions and recommendations;

Učesnici konferencije (univerzitetski profesori, sudije i sudije Ustavnog suda, tužioci, naučni saradnici instituta, advokati, NGO i saradnici CJP) su nastojali da identifikuju uzroke prezidencijalizacije parlamentarizma u Srbiji, ali i da odgovore na pitanje u kojoj meri bi se ustavnim inženjeringom, u pogledu načina izbora i delokruga ovlašćenja šefa države, moglo uticati na uspostavljanje balansa u sistemu vlasti.

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The Constitutional Principle of the Separation of Powers – Legislative Power, Executive Power and Political Parties in the Republic of Serbia

Ustavno načelo podele vlasti – zakonodavna vlast, izvršna vlast i položaj političkih stranaka u Republici Srbiji

Author(s): Tamás Korhecz / Language(s): Serbian

Keywords: Separation of powers principle; constitutional order of the Republic of Serbia; position and relation of the legislative and executive branch of power; political parties;

The essay discusses some actual topics related to the implementation of the Separation of powers principle in the constitutional order of the Republic of Serbia, with special focus on the position and relation of the legislative and executive branch of power. The practical relationship between these two branches is far from the normative solutions stipulated by the Constitution. Among the reasons for these deformities one may note the position and actual power of ruling parliamentary political parties. This power is much beyond the position of political parties stipulated by the Constitution itself. Despite these discrepancies between the constitutional provisions and constitutional practice, the power of political parties and their leaders is democratically acquired on democratic elections. However, democratic legitimacy of powerholders is not equal with constitutionalism and rule of law, which requires the separation of powers as well. The concentration of political powers outside democratic state authorities in ruling parliamentary parties generates some worries: political parties often lack necessary transparency, internal democracy and effective judicial control. The present shortcomings might be cured, at least partially by the reform of the present oversimplified proportional electoral system. Single member districts, with individuals competing for parliamentary mandate, exclusion of having elections on all levels on the same date and other rules may create more power balance within the system of the separation of powers.

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Draft amendments to the constitutional provisions on the judiciary and opinion of the Venice Commision No. 921/2018 on the draft amandments

Nacrt amandmana na ustavne odredbe o pravosuđu i mišljenje Venecijanske komisije br. 921/2018 o Nacrtu amandmana

Author(s): Vida Petrović-Škero / Language(s): Serbian

Keywords: Draft of the Amendment to the Constitution’s judicial articles; Venetian committee on the Amendment draft; Action plan for chapter 23; Ministry of Justice;

The text analyses the Draft of the Amendment to the Constitution’s judicial articles and the opinion of the Venetian committee on the Amendment draft. After the consultancy process, The Ministry of justice published on 22nd January 2018 the working version of the Constitutional amendment draft, in line with the obligations RS accepted with the adoption of the Action plan for chapter 23. In February and March 2018 public debates were held on the changes in the Constitution that should have been the foundation for the Amendment draft. It is obvious that the Ministry of Justice was not guided by the majority of stated opinions neither in the public debate, nor in written texts when they wrote the Amendment draft. The Ministry has done the Amendment draft with no explanation. It remains vague why they accepted the solutions that are in defiance with many standards and are not in line with our standards. The Ministry of justice gave a written explanation, after which the Venetian committee during the 115 plenary session (Venice 22-23 Jun 2018) adopted the opinion No. 921/2018. For 29 amendments, Venetian committee gave over 40 recommendations, highlighting 8 main ones, referring to the membership of High counsel of judiciary, High counsel of prosecutors and the role of National assembly, dissolution of High counsel of judiciary, dismissal, unique law application and election and responsibilities of public prosecutors and deputy public prosecutors. By analyzing the given opinion, it cannot be concluded that we are ”on the good path” to provide de-politicization of the justice system and guarantee independence through the process of Constitution changes.

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On Some Common Places in the Understanding of the System of Government in General and in the Republic of Serbia

O nekim opštim mestima u poimanju sistema vlasti uopšte i u Republici Srbiji

Author(s): Vladan Petrov / Language(s): Serbian

Keywords: system of government; principle of the separation of powers; system of the Republic of Serbia; Serbian constitutional law; state unity;

The author deals with some common places in the understanding of the system of government. He divides them in two groups: (1) those related to all the systems of government based on the principle of the separation of powers; (2) those specific to the system of the Republic of Serbia. He writes about: a) the need of theoretical rethinking and constitutional redefining the principle of separation of powers, which is not a classic trichotomy anymore; b) the relativism of doctrinal classification of systems of government (presidentialism – parliamentarism; presidentialism – parliamentarism – semi-presidentialism or mixed system), c) the gap between constitutional norm and constitutional reality and d) the evaluative transformation of modern parliamentarism from the ideal equilibrium of political powers to the inclusiveness of different political actors in the process of bringing political and legal decisions. The author criticizes the tendency in Serbian constitutional law science, started from 1990̕ s, which has blurred the difference between the law and the politics in understanding the institutions and mechanisms of the system of government. He accents that there is no causal connection between the direct election of the President of Republic and his omnipotence. On the other hand, the constitutional competences of the Serbian President are not so weak as some authors say interpreting the constitutional phrase „the President of the Republic shall express state unity“. According to the author, the most controversial spot is the statement about the President of the Republic as a representative of the citizens who functions as a neutral power which arbitrates between the National Assembly and the Government. This statement, which prevails in constitutional law literature especially in Serbia, is rather false and should be abandoned. The President of the Republic must be politically active in a constitutional manner. The point is to find a constitutional balance between a politically active President, an operative Government and a representative Parliament, on the one hand, and to strengthen the constitutional culture, on the other hand.

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Relationship of the Supreme Court of Cassation and the Constitutional Court – Conflicts that remains

Odnos Vrhovnog kasacionog suda i Ustavnog suda - konflikt koji i dalje traje

Author(s): Katarina Manojlović-Andrić / Language(s): Serbian

Keywords: Constitutional Court; Supreme Court of Cassation; conflicts; constitutional appeals; public law; Serbia;

There is a long-standing conflict between the Supreme Court of Cassation and the Constitutional Court over constitutional appeals, which affects legal certainty and the equal protection of the rights of parties in judicial proceedings. Overcoming this dispute is possible within the existing normative solutions - by rectifying the actions of both courts. In order not to become a supreme court that reviews judicial decisions in the same way as regular instance courts do, the Constitutional Court must recourse to self-restraining when deciding on constitutional appeals. The Constitutional Court should only annual judicial decisions when the harmful consequences of unconstitutionality cannot be eradicated by reopening judicial proceedings. On the other hand, the Supreme Court of Cassation must execute the Constitutional Court’s decisions enacted on the constitutional appeals by applying the legal stances taken in those decisions, based on the principle stare decisis.

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The Relations between the Constitutional Court and the Courts in the Light of the Constitutional Oversight of Judicial Decisions – the Analyzes of Practice of the Constitutional Court of Serbia

Odnos Ustavnog suda i sudova u svetlosti ustavnog nadzora nad sudskim odlukama – analiza prakse Ustavnog suda Srbije

Author(s): Vladan Petrov,Maja Prelić / Language(s): Serbian

Keywords: Constitutional Court; courts; Serbia; constitutional oversight; judicial decisions; violation of human rights; public law;

In this article, the authors are giving the analyzis of selective decisions of the Constitutional Court of Serbia in relation to some dilemmas in the constitutional oversight of judicial decisions. Two aspects of the constitutional oversight of judicial decisions in Serbia are rather controversial. First is the possibility of the Constitutional Court̕ s cassation of judicial decisions which violate human rights. The second is the potential role of the Constitutional Court as a „super revision court“. Those open questions make latent tensions between the Constitutional Court and the High Court of Cassation. The main thesis in the article is that the task of the Constitutional Court and the courts is almost identical. It is a complete and effective protection of human rights. The Constitutional Court is a subsidiary and not a souvereign protector of human rights. According to the authors, the interplay between the Constitutional Court and the courts has to be based on „a demand for complementarity“. Without that „complementarity“ no constitutional revision can prevent the persistante conflict between the Constitutional Court and the courts which endagers the implementation of the rule of law. The recent practice of the Constitutional Court indicates some positive moves towards the establishment of better institutional cooperation and mutual understanding, i. e. the constitutional culture which is less conflictual. However, much remains to be done. That is the common task of the Constitutional Court, the courts and the other institutional factors which are participating in the realization of the rule of law in Serbia.

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

Ustavna žalba u Nemačkoj kao uzor ustavne žalbe u Srbiji - izvor problema, ali i rešenja

Author(s): Miloš B. Stanić / Language(s): Serbian

Keywords: constitutional complaint; Germany; Serbia; Federal Constitutional Court; Constitutional Court of Serbia; ordinary courts; subsidiarity;

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.

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The Third Party Concerned in the Constitutional Complaint Proceedings before the Constitutional Court -with Special Reference to the Constitutional Court of the Republic of Serbia

Zainteresovano lice u postupku po ustavnoj žalbi pred Ustavnim sudom

Author(s): Bosa N. Nenadić / Language(s): Serbian

Keywords: Constitution; Constitutional Court; constitutional complaint; Serbia; Serbian legislation; public law; protection of human rights;

In the proceedings before constitutional courts of most European countries, regardless of the subject matter of the constitutional dispute, there are no parties formally (as is the case of court proceedings), instead as a rule, participants appear in the proceedings. When it comes to the constitutional complaint proceedings for the protection of fundamental rights and freedoms, obligatory participants in the proceedings before of the constitutional courts are: the appellant and the enactor of the act or action challenged by the constitutional complaint. However, other persons may participate in the constitutional court proceedings as well, persons most commonly referred in legal literature and constitutional court practice to as „third party concerned “. This paper analyzes the legal position and entitlement of these persons precisely because they have a legal interest in the outcome of constitutional complaint proceedings before constitutional court, since the decision of the constitutional court may affect (directly or indirectly) their rights or freedoms. As there is no provision in the Serbian present legislation for the third party concerned in the constitutional complaint proceedings before the constitutional court (which is rarely found in comparative law), the paper gives a critical review of the presence of a „legal gap“ on the status and entitlements of these persons and points to the necessity and way of its removal in accordance with the requirements of the Constitution and the European Convention (which our legislator has obviously ignored).

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