Ustavni sud o “kontroli razumevanja” ustavom garantovanih prava u sudskim odlukama
The Constitutional Court on the “Control of Comprehension” of Fundamental Rights in Court Decisions

Author(s): Irena Pejić
Subject(s): Law, Constitution, Jurisprudence, Constitutional Law, Evaluation research
Published by: Fondacija Centar za javno pravo
Keywords: BiH; Constitutional Court; Constitution; fundamental rights;
Summary/Abstract: In principle, a constitutional complaint before the Constitutional Court initiates the procedure of “control of comprehension” of fundamental rights by the ordinary court. As an instrument for the protection of fundamental rights, a constitutional complaint may lead to deepening the tensions between the Constitutional Court and ordinary courts. This potential “dispute” can be perceived from two different perspectives. The first one considers a dilemma about the principle of the separation of powers, i.e. whether it is allowed for the authority which is not part of the judicial system to review ordinary court decisions. Arguments in favor of establishing the Constitutional Court control of court decisions can be found in the general theoretical justification of constitutional review. If the constitutional review in abstract is not a threat to the legislative power of the National Assembly, the constitutional complaint as an instrument of “control of comprehension” of fundamental rights by ordinary courts does not constitute an interference with their independence. Thus, this form of inter partes constitutional review is in accordance with the rule of law. The second level of analysis refers to the effect of the Constitutional Court control in regard to ordinary courts and citizens, i.e. the consequences caused by the Constitutional Court decision. The main goal of constitutional review is to remove unconstitutional acts from a legal order, but the question remains whether it is enough for the right holder. The Constitutional Court performs a control of constitutional justifiability in order to find out any violation of fundamental rights. If there is a violation, the case should be returned to the State authority or ordinary court which is obliged to respect the standpoints contained in the Constitutional Court decision. According to the Serbian national law, a court decision could be annulled by the Constitutional Court decision, but with no clear indication of what happens with a violated right. The question is whether the Constitutional Court is obliged to return “the case” to an ordinary court after annulment or not. We believe an explicit provision should be introduced into the Constitutional Court Act of the Republic of Serbia, as follows: after the Constitutional Court has resolved a specific constitutional issue as to whether a fundamental right has been violated, the ordinary court should have the authority to finally decide on a specific dispute in accordance with the Constitutional Court decision. Thus, the Constitutional Court decision should not annul the judgment ab initio; rather, the judgment should be revoked and the case file should be sent to the ordinary court for a retrial in order to restore the fundamental rights of the applicant. The effects of the Constitutional Court decision are ex nunc so that the final decision regarding a specific case should be made by the ordinary court. In this manner, both principles can be preserved: the principle of constitutionality and legality as well as the principle of the separation of powers.

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