Ustavna žalba – odbacivanje ili meritorno odlučivanje – nedefinisana granica sa nekoliko međaša
Constitutional Complaint – Rejection or Decision in Merits – Undefined Division Lines with few Border Stones

Author(s): Tamás Korhecz
Subject(s): Constitutional Law, Public Law, Sociology of Law
Published by: Fondacija Centar za javno pravo
Keywords: Constitution; Constitutional Court of Serbia; constitutional complains; public law;
Summary/Abstract: The basic and original competence of constitutional courts is judicial review of the constitutionality of statutes, other legislative acts and regulations. However, majority of constitutional courts has further competences such as resolving conflict of jurisdiction between various authorities, electoral litigations, prohibition of political and other organizations, individual constitutional appeals (complains) etc. The constitutional appeal was introduced into the constitutional law of Serbia, relatively recently with the Constitution of Serbia from 2006. Article 170 of the Constitution stipulates: “A constitutional appeal may be lodged against individual general acts or actions performed by state bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been applied or not provided.” In present constitutional framework the Constitutional Court of Serbia functions since the end of year 2007. In the last decade the bulk of the Constitutional Court’s administrative, professional and intellectual capacities was mobilized to cope with and resolve constitutional appeals of citizens. In recent years the Constitutional Court of Serbia receives more than ten thousand new constitutional complains yearly, while the overall sum of cases in all other areas of competence is much under one thousand. In practice, the constitutional appeal is directly or indirectly a mean for controlling the constitutionality (and sometimes legality) of court decisions. With some exceptions, constitutional appeals are used directly or indirectly against decisions of law courts (actually sometimes against administrative acts, acts of local authorities but only after they were controlled in judicial review by law courts). One can raise a question, where to draw the division line between illegality against which one can use constitutional appeal before the Constitutional Court and those where this protection is not available. In this paper the jurisprudence of the Serbian Constitutional Court will be analyzed with special emphases on this division line. Which individual authoritative legal acts of authorities fell out the constitutional appeal protection? Author calls for the creation of more visible and sustainible criterias for the admission of constitutional complains in the jurisprudence of the Constitutional Court.

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