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

Author(s): Vladan Petrov, Maja Prelić
Subject(s): Constitutional Law, Human Rights and Humanitarian Law, Public Law, Sociology of Law
Published by: Fondacija Centar za javno pravo
Keywords: Constitutional Court; courts; Serbia; constitutional oversight; judicial decisions; violation of human rights; public law;
Summary/Abstract: 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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