Institucionalna fizionomija ustavne žalbe u Republici Srbiji u svetlosti uporednopravnih rešenja
Institutional Physiognomy of Constitutional Complaint in the Republic of Serbia in Light of Comparative Constitutionalism

Author(s): Darko Simović
Subject(s): Constitutional Law, Public Law
Published by: Fondacija Centar za javno pravo
Keywords: Constitution; Constitutional Court; Serbia; constitutional complaint; physiognomy of constitutional complaint; public law;
Summary/Abstract: In this paper the author analyses the institutional physiognomy of constitutional complaint in the Republic of Serbia, as well as it implementation in practice in light of institutional models of three respectable countries − Germany, Austria and Spain. Furthermore, it looks at some specific characteristics of constitutional systems which have subsequently established this legal remedy. Regarding the fact that comparative law does not provide an uniform institutional model of constitutional complaint and the limited experience of the Republic of Serbia with this institute, many questions have been raised in that field in our theory. At first glance, it seems that the 2006 Constitution of Serbia has very extensively established the possibility of utilizing constitutional complaint, which created a risk of impeding the work of the Constitutional Court. Data regarding the work of the Constitutional Court shows that deciding-on constitutional complaints has become the dominant competency of this body. Because of that it is necessary to establish more efficient mechanism of preliminary selection of constitutional complaints. In addition, the possibility of the Constitutional Court to annul court decisions has created tension between this Court and the High Court of Cassation. Hence, the relationship between the Constitutional Court and the ordinary courts must be more precisely and consistently regulated by a normative framework. In any case, the decreasing number of cases appearing before the European Court for Human Rights against Serbia shows that constitutional complaint is an increasingly effective legal remedy. However, for full affirmation of constitutional complaint as the legal remedy for protection of human rights, it is necessary to also develop an appropriate legal culture, which requires time.

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