ОДНОС УСТАВНОГ СУДА И РЕДОВНИХ СУДОВА - КОМЕНТАР ОДЛУКЕ УСТАВНОГ СУДА СРБИЈЕ
The Relationship between the Constitutional Court and Regular Courts: A Commentary on a Decision of the Constitutional Court of Serbia

Summary/Abstract: In this paper, the author analyses a decision of the Constitutional Court of Serbia on the validity of the Constitutional Court Act provision which envisages that judicial decisions of ordinary court are exempt from annulment in the course of the constitutional appeal procedure. The Court held that these provisions of the Constitutional Court Act are unconstitutional. Although this Constitutional Court decision was awarded in the course of the constitutional review proceeding, this decision casts more light on the relationship between the Constitutional Court and regular courts in constitutional appeal proceedings. Moreover, this decision provides answers to some questions concerning the formal requirements for initiating a constitutional appeal proceeding. Namely, in this specific case, the constitutional review proceeding was instigated ex officio upon the initiative of the Constitutional Court itself, which is quite rare in the jurisprudence of this Court. Another peculiarity of this case in that the subject matter of constitutional review is the Constitutional Court Act, which ultimately implies that the outcome of this proceeding has direct implications on the operation of the Constitutional Court. The Constitutional Court found that the exemption of ordinary courts’ decisions from annulment constitutes a violation of the constitutional principle that all acts of public authorities are subject to the same general constitutional review procedure; thus, the Constitution does not envisage any Constitutional Court powers other than those it has already been vested with, nor a different effect of the Constitutional Court decisions awarded for the purpose of protecting the constitutionally guaranteed rights and freedoms. The Constitution does not recognize differences which may be based on the type of a disputed act (in terms of the branch of government it has been issued by). Concurrently, the effectiveness of the constitutional appeal is diminished because the ordinary courts’ decisions are the most common subject matter of constitutional appeal. Moreover, in a vast majority of cases, an ordinary court decision isthe act of the last resort which may be used to remove the violation of some human rights. The Court assumes that the purpose and objective of the constitutional appeal is not accomplished by declaring that there was a violation of a guaranteed right but by removing the consequences arising from the established violation of the constitutionally guaranteed rights and freedoms, no matter which public authority has issued the disputed act. Thus, ordinary courts’ decisions remain absolutely “untouchable“ for the legislative and executive authorities but they are not“untouchable“in terms of assessing whether they violate the basic constitutionally guaranteed human rights. The Constitutional Court emphasizes that its legally vested power to annul the ordinary courts’ decisions does not imply a last-instance control over these decisions because the focus of constitutional review is not to assess the accuracy of facts or examine how the regular courts applied the substantive law but to provide the interpretation of constitutionally guaranteed rights. It remains to be seen whether this decision will contribute to clarifying the relations between the Constitutional Court and the regular courts; however, from the aspect of human rights protection, it is extremely important to end up the rivalry between these courts. The activities of regular courts, which are aimed at providing a permanent and on-going protection of human rights, may not be substituted by the Constitutional Court activities. The constitutional appeal submitted to the Constitutional Court is aimed at providing an “exclusive” protection of human rights, and only in exceptional cases can it lead to the annulment of ordinary courts’ decisions. Besides, the Constitutional Court is not the “supreme” guarantor of human rights because its decisions are subject to the reassessment of the European Court of Human Rights.

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