Primena međunarodnog prava u postupcima po ustavnoj žalbi Ustavnog suda Republike Srbije
Application of the International Law in Constitutional Complaint Procedure before the Constitutional Court of the Republic of Serbia

Author(s): Tijana Šurlan
Subject(s): Constitutional Law, International Law, Evaluation research
Published by: Fondacija Centar za javno pravo
Keywords: Serbia; Constitution; Constitutional Court; international law; human rights;
Summary/Abstract: The position of the International Law in the national legal system is defined in the Constitution of the Republic of Serbia (Article 16). International law forms the integral part of the national legal system and it is directly applicable. In addition to the general definition of the position of the International Law, the significance and place of international legal acts in the field of human rights protection is additionally defined. The determination of human rights is grounded on the provisions of the Constitution, International Law and law to a certain extent (Article 18). The interpretation of human rights needs to be further aligned with the standards and practices of international institutions that monitor the implementation of human rights. The normative framework for the application of the International Law in proceedings before the Constitutional Court has therefore been created and it is the Court prerogative to implement it. The paper cites the Constitutional Courts jurisprudence in two categories of cases: cases whose normative framework inevitably had to introduce international legal acts and cases where it was not necessary but it was appropriate. For the purpose of comparing and presenting methods of application of the International Law in the European Court of Human Rights jurisprudence has been used. Cases that were considered treated the same rights, as the cases of the Constitutional Court which were analysed as illustration - the human right of asylum, prohibition of torture and the rights of the child. The overall conclusion is that the Constitutional Court rarely applies international law in its constitutional complaint procedure. The provisions of the Constitution do not create obligation to apply international law, but create international law as an integral part of the legal system, with the instruction to implement standards and case-law of international institutions protecting the human rights. International Law, rich in legal acts protecting human rights, as well as the experience of the international institution, form great amount of helpful tools for further development of the protection of human rights and thus it should be used in the procedures before the Constitutional Court.

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