Uticaj jurisdikcije Evropskog suda za ljudska prava na odlučivanje Ustavnog suda Srbije u postupku po ustavnoj žalbi
Impact of the Jurisdiction of the European Court of Human Rights on the Decisions of the Constitutional Court of Serbia in the Procedure of Constitutional Appeal

Author(s): Maja Nastić
Subject(s): Constitutional Law, Human Rights and Humanitarian Law, Evaluation research, EU-Legislation
Published by: Fondacija Centar za javno pravo
Keywords: Serbia; Constitutional Court; European Court of Human Rights; ECHR; evaluation;
Summary/Abstract: The impact of the jurisdiction of the ECtHR on the Constitutional Court decisions is analyzed based on the normative framework established by the Constitution of Serbia (2006). Of particular importance are the provisions of the Constitution governing the relationship between national and international law, the basic principles of human and minority rights as well as the provisions on the Constitutional Court. By establishing the jurisdiction of the Constitutional Court to decide on constitutional complaints, the Republic of Serbia became a part of the large number of countries that recognized the importance of this legal instrument. At the same time, the constitutional complaint emerges as a specific „reference point“ between the national constitutional court and the European Court of Human Rights. It is the last legal remedy to be used before possible referral to the European Court. The complainants often turn to the Constitutional Court because of violation of their rights enshrined in the ECHR. However, when the protection of this rights is also ensured by the Constitution, the Constitutional Court shall assess the violation or denial of the right concerning the relevant provisions of the Constitution. The impact of the jurisdiction of the European Court on the decision-making of the Constitutional Court in the procedure of constitutional appeals is analyzed from two aspects: a general one, concerning the fundamental principles on which human rights protection system is based and from the perspective of individual guarantees of human rights. The Constitutional Court shows its willingness to adapt its jurisdiction and bring it into line with the ECHR and the case-law of the European Court. Moreover, the Constitutional Court of Serbia demonstrates that it understands the ECHR as a living instrument. However, the Constitutional Court should not be overshadowed and blindly guided by the case-law of the European Court or to use it as a “paravane“ to justify political desirable decisions. This is important because it is expected that the Constitutional Court will show the path that regular courts should follow to protect human rights and freedoms.

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