ПРЕВЕНТИВНА КОНТРОЛА УСТАВНОСТИ: УПОРЕДНА ИСКУСТВА И МОГУЋНОСТ ПРИМЕНЕ ПРЕМА УСТАВУ СРБИЈЕ
THE PREVENTIVE CONTROL OF CONSTITUTIONALITY: COMPARATIVE PRACTICES AND POSSIBLE APPLICATION PURSUANT TO THE SERBIAN CONSTITUTION

Summary/Abstract: Considering the moment when the control of constitutionality is exercised, we may distinguish between an a priori control and an a posteriori control. The preliminary or preventive constitutionality control is carried out in respect of the acts which have not entered into force yet and become applicable. Such a control enables to eliminate the unconstitutionality of a legal act before it embarks on it legal life and thus contributes to the legal certainty and reliability of the legal system, which are the greatest advantages of the constitutionality control. However, one of the largest shortcomings of the constitutionality control is the fact that the constitutional court is actively involved in the legislative proceedings and thus brought too close to the legislator, which is perceived by some theoreticians as a violation of the principle of the separation of powers. The most typical example of the preventive control of constitutionality is the control exercised by the Constitutional Council of France (Conseil Consitutionnel). The preventive constitutionality control has been instituted in some other countries such as Finland, Romania and Poland but in these countries its application is highly restrictive. With all its advantages and disadvantages, the preventive control of constitutionality is not the choice of the constitutional courts. The constitutional control (judicial review) is primarily exercised as an a posteriori control whereas the preventive control (if applicable) has a character of an “auxiliary” control. Under the 2006 Constitution of Serbia, the Constitutional Court of Serbia has retained the a posteriori control as a dominant form of control; however, pursuant to Article 169 of the Constitution, there is a also a possibility of instituting the preventive (a priori) control. As compared to some other constitutional systems, the preventive control of constitutionality in our constitutional system is set out very restrictively in terms of the persons authorized to initiate the proceeding and in terms of the acts which are subject to this kind of control; moreover, there is a very short period of limit in which the Constitutional Court is obliged to decide on the matter at issue and, in case the time limit has expired, there is also a possibility of turning the preliminary control into an a posteriori control. Furthermore, such regulation of the preventive constitutionality control has serous drawback in terms of the effect of the Constitutional Court decision which was reached while the Court was acting in that capacity. Generally speaking, such a construction gives rise to many questions and dilemmas, among which is a justified justifiable question concerning its applicability. The only good point is the possibility of applying the preventive control in the course of establishing the constitutionality of international agreements, where the perceived shortcomings might be mitigated by the positive effects of such a control, particularly in terms of protecting the international reputation of the state.

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