serbian supreme judicial authorities

SERBIAN SUPREME JUDICIAL AUTHORITIES

December 2012

Serbian Supreme Judicial Authorities - December 2012


Executive Summary

The purpose of this memorandum is to examine Serbia’s supreme judicial authorities and their roles in protecting individual rights. Serbia has two supreme judicial authorities: the Supreme Court of Cassation and the Constitutional Court. Two major pieces of legislation supplement Serbia’s Constitution by providing the mechanics of how the judicial system operates: the Law on Organization of Courts and the Law of the Constitutional Court.

The Supreme Court of Cassation hears appeals from the lower courts and is

the final authority over criminal, civil, and administrative law matters. In addition, the Supreme Court serves as the final appellate court for cases concerning individual rights. Serbia’s Penal Code and Law on Prohibition of Discrimination grant the Supreme Court the power to provide individuals with legal redress against discriminatory state actions. Individuals can take cases of discrimination and other human rights violations to Basic Courts, which are under the authority of the Supreme Court.

The Constitutional Court is responsible for deciding all constitutional

questions and issues relating to Serbia’s international obligations. The Constitutional Court is the highest authority concerning compliance with the Constitution and the state’s international obligations. The Constitutional Court can hear individual claims of violations of constitutional rights, and also decides disputes between government bodies involving constitutional powers. In addition to the Constitutional Court’s traditional judicial role, it also has the authority to intervene, within its constitutional jurisdiction, in the Parliament’s legislative activities by issuing decisions on the constitutionality of pending legislation. This allows the Constitutional Court to intervene before a law is implemented to prevent violations of the Constitution.

Together, the Supreme Court of Cassation and the Constitutional Court ensure that the individual rights enshrined in the Constitution or codified in the Serbian legal system are protected against state action. Both courts are courts of final instance and generally require the applicant seeking redress to first proceed through levels of appeal before the lower courts. Such a system of appeal allows for efficiency in the legal system and uniform application of the law.


TABLE OF CONTENTS Statement of Purpose 1 Introduction 1 The Supreme Court of Cassation 1

Jurisdiction 1 Non-Constitutional Civil and Criminal Jurisdiction 2 Conflicts of Jurisdiction 4 Protection of Individual Rights 4

Constitutional Court 7

Jurisdiction 8 Constitutionality of General Acts 8 Conflicts of Jurisdiction 10 Protection of Individual Rights 11 Additional Competencies 12

Relation with the Judiciary 13 Conclusion 14 Appendix 15


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Statement of Purpose The purpose of this memorandum is to examine Serbia’s supreme judicial

authorities, public access to the supreme judicial authorities, and the role of the institutions in protecting individual rights.

Introduction

A supreme judicial authority is the highest state-level court and is tasked

with synchronizing the interpretation and application of a state’s laws to avoid inconsistent judicial decisions.1 Supreme judicial authorities can also play an important role in protecting individual rights, by ensuring individuals’ access to redress against violations of their rights by private and public entities.2 Serbia has two independent supreme judicial authorities, which harmonize the interpretation of the law and protect individual rights: the Supreme Court of Cassation and the Constitutional Court. The Supreme Court of Cassation decides appeals from the lower courts in Serbia and ensures consistency in the application of civil and criminal laws.3 The Constitutional Court decides questions pertaining to the application of the Constitution, as well as Serbia’s international obligations.4

The Supreme Court of Cassation

The 2006 Serbian Constitution established the Supreme Court of Cassation

(Supreme Court) as the highest court in Serbia.5 The Law on the Organization of Courts further defines the Supreme Court’s jurisdiction and authority.6

Jurisdiction The Supreme Court’s primary function is to ensure uniform application of

Serbia’s state laws by hearing and reviewing appeals brought from the lower 1 Organization for Security and Co-operation in Europe Mission to Bosnia and Herzegovina, Interview: Head of the OSCE Mission to BiH, Gary D. Robbins, (Dec. 23, 2010), available at http://www.oscebih.org/News.aspx?newsid=73&lang=EN. 2 Organization for Security and Co-operation in Europe Mission to Bosnia and Herzegovina, Interview: Head of the OSCE Mission to BiH, Gary D. Robbins, (Dec. 23, 2010). 3 Law on Organization of Courts, art. 31 (Serbia, 2008), available at http://www.mpravde.gov.rs/images/1_Law_on_organization_of_courts.pdf. 4 SERBIA CONST., art. 167 (2006), available at http://www.srbija.gov.rs/cinjenice_o_srbiji/ustav.php. 5 SERBIA CONST., arts. 143 (2006). 6 Law on Organization of Courts, art. 31 (Serbia, 2008).


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courts.7 As the final authority on all non-constitutional issues, the Supreme Court’s decisions are binding and may not be appealed to another court.8

Non-Constitutional Civil and Criminal Jurisdiction As stated earlier, the Supreme Court is the final authority on the

interpretation and application of the law.9 As such, the Supreme Court is responsible for reviewing decisions appealed from the lower courts. The Law on the Organization of Courts establishes and delineates the jurisdictions of the lower courts and the Supreme Court.10 Directly below the Supreme Court are four distinct courts over which the Supreme Court has final judicial authority: the Appellate Courts, the Administrative Court, the Commercial Court of Appeal, and the High Misdemeanor Court.11 Below the Appellate Courts are Higher Courts and Basic Courts, which have exclusive jurisdiction to hear non-constitutional civil and criminal cases.12 The three other courts are specialized courts with jurisdiction over particular areas of law.13 Moreover, the Law on the Organization of Courts outlines the appeals process for the Basic, High, and Appellate courts, as well as the Administrative, Commercial, and High Misdemeanor Courts.14

The Supreme Court is the court of immediately higher instance for the

Appellate Courts, which hear appeals from the Higher Courts and the Basic Courts.15 Most cases are initiated in the Basic Courts where individuals generally first raise claims that a right or freedom has been violated.16 Basic Courts are Serbia’s lowest courts and determine both factual and legal issues, hearing evidence and deciding cases based on the merits.17 Basic Courts adjudicate minor criminal offenses and civil matters that are not reserved for another court by the Law on the Organization of Courts.18 For criminal offenses, the Basic Courts have jurisdiction where the sentence is either a fine, or imprisonment of up to ten years.19 Basic Courts are also generally the courts of first instance for disputes regarding housing and employment.20 7 Law on Organization of Courts, art. 31 (Serbia, 2008). 8 Law on Organization of Courts, arts. 12, 30, (Serbia, 2008). 9 Law on Organization of Courts, art. 31 (Serbia, 2008). 10 Law on Organization of Courts, arts. 11-15 (Serbia, 2008). 11 Law on Organization of Courts, art. 15 (Serbia, 2008). 12 Law on Organization of Courts, art. 24 (Serbia, 2008). 13 Law on Organization of Courts, arts. 25-29 (Serbia, 2008). 14 Law on Organization of Courts, art. 11 (Serbia, 2008). 15 Law on Organization of Courts, art. 24 (Serbia, 2008). 16 Law on Organization of Courts, arts. 14, 16 (Serbia, 2008). 17 Law on Organization of Courts, arts. 14, 16 (Serbia, 2008). 18 Law on Organization of Courts, arts. 14, 16 (Serbia, 2008). 19 Law on Organization of Courts, art. 22 (Serbia, 2008). 20 Law on Organization of Courts, art. 22 (Serbia, 2008).


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In certain circumstances, the Higher Courts are also courts of first instance.21

The Higher Courts immediately hear cases for high-value civil litigation, intellectual property disputes, prohibitions on media and the press, and certain employment matters, without requiring complainants to first go through the Basic Courts system.22 Most serious criminal offenses also begin in the Higher Courts, including crimes against the military, provoking ethnic or religious hatred, treason, international crimes, crimes committed by public officials, and crimes committed by juveniles.23 Higher Courts are also courts of appeal for the Basic Courts for criminal proceedings (such as bail) and civil disputes involving smaller claims.24

Appellate Courts are the next level of appeal above the Higher Courts and

review decisions appealed from the Higher Courts.25 The Appellate Courts also review decisions made in the Basic Courts on matters that do not fall within the jurisdiction of the Higher Courts.26 Appellate Courts also settle disputes between lower courts about where a case ought to be heard.27 The last level of appeal after the Appellate Courts is the Supreme Court.28

The specialized courts are the Administrative, Commercial Appellate, and

High Misdemeanor Courts, which handle cases within their particular area of law.29 The Supreme Court is the court of immediate higher instance for the Commercial Appellate Court,30 the High Misdemeanor Court,31 and the Administrative Court.32 Such a structure of appellate review allows for greater individual access to the judicial system, while reserving only the most “extraordinary” legal disputes for the Supreme Court,33 which may not have the resources and time to review all cases brought before the court system.

21 Law on Organization of Courts, art. 23 (Serbia, 2008). 22 Law on Organization of Courts, art. 23 (Serbia, 2008). 23 Law on Organization of Courts, art. 23 (Serbia, 2008). 24 Law on Organization of Courts, art. 23 (Serbia, 2008). 25 Law on Organization of Courts, art. 24 (Serbia, 2008). 26 Law on Organization of Courts, art. 24 (Serbia, 2008). 27 Law on Organization of Courts, art. 24 (Serbia, 2008). 28 Organization for Security and Cooperation in Europe, Judicial Institutions in Serbia (Sept. 2011), available at http://www.osce.org/serbia/82759. 29 Law on Organization of Courts arts. 11 (Serbia, 2008), available at http://www.mpravde.gov.rs/images/1_Law_on_organization_of_courts.pdf. 30 Law on Organization of Courts, art. 15, 26 (Serbia, 2008). 31 Law on Organization of Courts, art. 15 (Serbia, 2008). 32 Law on Organization of Courts, arts. 15, 30 (Serbia, 2008). 33 Law on Organization of Courts, art. 30 (Serbia, 2008).


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Conflicts of Jurisdiction The Supreme Court also decides jurisdictional conflicts between lower

courts.34 For instance, if a case involves legal issues that seem appropriate within the jurisdiction of different courts, the Supreme Court decides which court to assign the case. The Supreme Court can also transfer cases between lower courts to increase efficiency or for other compelling reasons.35 This means that the Supreme Court has discretionary authority to transfer cases from one court to another if a particular court is overloaded with cases or another court has more appropriate jurisdiction.

Protection of Individual Rights The Supreme Court protects individual rights by reviewing challenges to

lower court decisions on criminal and civil matters. Individuals have a constitutional right to seek legal redress for private and state actions that violate citizens’ legal rights.36 Parties dissatisfied with a decision of a lower court may reach the Supreme Court through levels of appeal.37 As such, the Supreme Court ensures the protection of individual rights by resolving challenges to criminal convictions, as well as violations of other state-level laws, including Serbia’s Law on the Prohibition of Discrimination.38 The Law enables individuals to file complaints of human or minority rights violations by private and state actors in the lower courts,39 which can then be received by the Supreme Court through the appeals process.

The Supreme Court also ensures the protection of individual rights by

relying on and applying international human rights law. For instance, in a 2004 anti-discrimination case, the Supreme Court directly applied both state law and international conventions ratified by Serbia.40 Upon receiving complaints that the Krsmanovača Sport Center was discriminatorily barring Roma from access to the pool, the Humanitarian Law Center filed a civil action suit for racial

34 Law on Organization of Courts, art. 12, 30, (Serbia, 2008). 35 Law on Organization of Courts, art. 30, (Serbia, 2008). 36 SERBIA CONST., arts. 21-22, 168 (2006). 37 Law on Organization of Courts, arts. 12, 15 (Serbia, 2008). 38 The Law on the Prohibition of Discrimination (Serbia, 2009) available at http://www.minoritycentre.org/sites/default/files/The%20Law%20on%20the%20Prohibition%20of%20Discrimination%20ENG_0.pdf. 39 Criminal Code, art. 387 (Serbia, 2006) available at http://www.osce.org/serbia/18244; The Law on the Prohibition of Discrimination, arts. 33, 42 (Serbia, 2009). 40 Equal Rights Trust, Serbia: Decision on Anti-Discrimination Cases (2009), available at http://www.equalrightstrust.org/ertdocumentbank/550014425_2__PILI%20Project%20-%20Serbia%20National%20Case%20Law%20Template.pdf.


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discrimination.41 The Municipal Court issued a decision, subsequently upheld by the District Court, ordering the Sports Center to issue a public apology printed in the daily paper to the three Roma who had been refused entry.42 The Sports Center appealed to the Supreme Court, who declared that the action violated the Law on Obligations, which prohibits “behavior that injures a person’s honor, reputation, dignity, and similar,” and ordered the Sports Center to stop discriminating against Roma.43 The Supreme Court also held the act violated the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the International Covenant on Civil and Political Rights.44 The Supreme Court also affirmed the judicial protection of any violation of individual rights through requests to cease and desist and requests for reparation.45

As a Supreme Court decision, the Krsmanovača case condemning racial discrimination against the Roma and establishing the right to equal protection of individual rights sets binding precedence for the lower courts.46 Following the Krsmanovača decision, the Fourth Municipal Court of Belgrade convicted and sentenced a security guard at the “Acapulco” Club to six months of prison for denying access to three Roma citizens.47 The Court held that the denial was a criminal violation of the right to equal treatment for all citizens, and a violation of the Constitution, CERD, and the Charter of Human and Minority Rights.48

Victims of discrimination committed by public agencies may also seek

redress with the Supreme Court through petition for appeal for cases currently before the Administrative Courts.49 These claims generally arise from ministerial 41 Amnesty International, Supreme Court of Serbia Rules in Šabac Discrimination Case, SERBIA AND MONTENEGRO: A WASTED YEAR, THE CONTINUING FAILURE TO FULFILL KEY HUMAN RIGHTS COMMITMENTS MADE TO THE COUNCIL OF EUROPE, p. 46 (Mar. 2005) (citing to the Krsmanovača Case of 2004), available at http://reliefweb.int/sites/reliefweb.int/files/resources/E5028E620F85342B49256FCD0011E410-ai-yug-22mar.pdf. 42 Amnesty International, Supreme Court of Serbia Rules in Šabac Discrimination Case, SERBIA AND MONTENEGRO: A WASTED YEAR, THE CONTINUING FAILURE TO FULFILL KEY HUMAN RIGHTS COMMITMENTS MADE TO THE COUNCIL OF EUROPE, p. 47 (Mar. 2005) (citing to the Krsmanovača Case of 2004). 43 Amnesty International, Supreme Court of Serbia Rules in Šabac Discrimination Case, SERBIA AND MONTENEGRO: A WASTED YEAR, THE CONTINUING FAILURE TO FULFILL KEY HUMAN RIGHTS COMMITMENTS MADE TO THE COUNCIL OF EUROPE, p. 47 (Mar. 2005) (citing to the Ksmanovaca Case of 2004). 44 Equal Rights Trust, Serbia: Decision on Anti-Discrimination Cases (2009). 45 Amnesty International, Supreme Court of Serbia Rules in Šabac Discrimination Case, SERBIA AND MONTENEGRO: A WASTED YEAR, THE CONTINUING FAILURE TO FULFILL KEY HUMAN RIGHTS COMMITMENTS MADE TO THE COUNCIL OF EUROPE, p. 47 (Mar. 2005) (citing to the Krsmanovača Case of 2004). 46 Equal Rights Trust, Serbia: Decision on Anti-Discrimination Cases (2009) 47 European Roma Rights Centre, Discrimination Against Roma Punished by the Court (Jul. 19, 2007), available at http://www.errc.org/article/discrimination-against-roma-punished-by-the-court/2851; see also Equal Rights Trust, Serbia: Decision on Anti-Discrimination Cases (2009). 48 European Roma Rights Centre, Discrimination Against Roma Punished by the Court (Jul. 19, 2007); see also Equal Rights Trust, Serbia: Decision on Anti-Discrimination Cases (2009). 49 Law on Organization of Courts, art. 15 (Serbia, 2008).


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and executive regulations and include cases dealing with taxation, elections, government property, and the national bank.50

In addition, the Public Prosecutor’s Office and the Commissioner on the

Protection of Equality can appeal cases to the Supreme Court.51 These two public bodies are responsible for overseeing and pursuing alleged violations of state officials’ compliance with human and minority rights.52 The Public Prosecutor’s Office is charged with protecting the Constitution and laws by initiating criminal prosecutions independent of individual complaints.53 Moreover, the Public Prosecutor’s Office may file complaints and appeals in administrative hearings, and may reopen finalized cases on behalf of a victim or in cases where a decision would harm the public interest.54 These cases begin in the Basic or Higher Courts, in accordance with the jurisdiction set forth in the Law on the Organization of Courts, and reach the Supreme Court through the appeals process.55

The Commissioner for the Protection of Equality is an independent entity

that works on behalf of or with victims of discrimination.56 The Commissioner ensures that victims receive proper reparations and brings criminal and/or civil charges against perpetrators, including public officials, in court.57 Because the Commissioner acts as plaintiff in the law suit as if he or she were the victim, the Commissioner is obliged to proceed through the same legal channels of appeal before reaching the Supreme Court.58

In its first two years of activity, the Commissioner has filed three lawsuits in

the relevant lower courts and two misdemeanor charges on behalf of victims of discrimination.59 The Commissioner filed the first lawsuit after the defendant gave a radio interview lamenting the fact that a Roma woman and her five children would be moving into his building. The Court found the defendant guilty of

50 Linda Tashbook and Marko Zivanov, Guide to Legal Research in Serbia, GLOBALEX (Nov. 2009), available at http://www.nyulawglobal.org/globalex/Serbia.htm, 51 SERBIA CONST., art. 156 (2006); see also Law on the Prohibition of Discrimination art. 33 (Serbia, 2008). 52 SERBIA CONST., art. 156 (2006); see also Law on the Prohibition of Discrimination art. 33 (Serbia, 2008). 53 SERBIA CONST., art. 156 (2006). 54 Law on General Administrative Procedure, arts. 213, 240, (Serbia, 2008) available at http://www.mpravde.gov.rs/images/23__law_administrative_procedure.pdf. 55 Law on Public Prosecution, art. 39-31 (Dec. 2008), available at http://www.ns.vi.jt.rs/images/dokumenti/dokumenti_pdf_eng/zojt_eng.pdf 56 Law on the Prohibition of Discrimination, art. 33 (Serbia, 2008). 57 Law on the Prohibition of Discrimination, art. 33 (Serbia, 2008). 58 See Commissioner for Protection of Equality, Regular Annual Report for 2010, 22 (Mar. 2011), available at http://www.ravnopravnost.gov.rs/files/Regular_Annual_Report_2010.pdf. 59 See Commissioner for Protection of Equality, Regular Annual Report for 2011, 70-72 (Mar. 2012), available at http://www.ravnopravnost.gov.rs/files/2011%20Regular%20Annual%20Report.pdf.


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indirect discrimination against persons of Roma nationality. The Court prohibited the defendant from giving further statements and from expressing attitudes that discriminate against the Roma national minority. In addition, the defendant was ordered to publish an apology in a national newspaper at his own cost.60 The Commissioner also filed a lawsuit against the Football Federation of Serbia on grounds of gender discrimination, and against the city of Jagodina for adopting a decision on financial support to married couples that contained conditions which unjustifiably discriminated against those in a common-law marriage, those who were not born in Jagodina, those who have children from a previous common-law marriage, and those who were in a common-law marriage before their current marriage.61 Both misdemeanor charges brought by the Commissioner were for the unlawful segregation of Roma children.62

As the highest court of instance in matters of general and special jurisdiction, the Supreme Court has final authority on the interpretation and application of the law and is responsible for making sure the lower courts apply them consistently.63 Individuals have a right to seek legal redress against alleged violations of human rights at the hands of public and private individuals.64 Through the appeals procedure, individuals and human rights agencies can make sure the rights of individuals, particularly minorities, are protected under the law. Constitutional Court

The Constitutional Court is viewed as an independent body, organizationally

and functionally separate from the three branches of government, including the judiciary.65 The Constitution establishes the Court as the “autonomous and independent state body, which shall protect constitutionality and legality, as well as human and minority rights.”66 As such, the Court is responsible for ensuring that all general acts, including laws, individual acts, and state actions, are in compliance with the Constitution, and individual rights are protected.67 The Law 60 Commissioner for Protection of Equality, Regular Annual Report for 2011, 71 (Mar. 2012), available at http://www.ravnopravnost.gov.rs/files/2011%20Regular%20Annual%20Report.pdf. 61 Commissioner for Protection of Equality, Regular Annual Report for 2011, 71-72 (Mar. 2012), available at http://www.ravnopravnost.gov.rs/files/2011%20Regular%20Annual%20Report.pdf. 62 Commissioner for Protection of Equality, Regular Annual Report for 2011, 72 (Mar. 2012), available at http://www.ravnopravnost.gov.rs/files/2011%20Regular%20Annual%20Report.pdf. 63 Law on Organization of Courts, art. 31 (Serbia, 2008). 64 SERBIA CONST., arts. 21-22, 168 (2006). 65 Dr. Bosa Nenadic and Dr. Olivera Vucic, Institutional Guarantees of Independence of Constitutional Courts, CONSTITUTIONAL COURT OF SERBIA, sec. 3 (Jan. 2011), available at http://www.venice.coe.int/WCCJ/Rio/Papers/SRB_Nenadic_Vucic_autotrans_E.pdf. 66 SERBIA CONST., art. 166, 167 (2006). 67 SERBIA CONST., art. 167 (2006).


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on the Constitutional Court further defines the Court’s structure and procedures.68 The Constitutional Court’s decisions are final and binding.69

Jurisdiction

The Court’s competences encompass a wide range of responsibilities in

accordance with its mandate to uphold the Constitution and protect individual rights. The Law on the Constitutional Court sets forth the procedures for accessing the Court based on the type of constitutional violation alleged.

Constitutionality of General Acts The Constitutional Court firstly decides on the compliance of laws and other

general acts with the Constitution.70 This is the “fundamental, primary competence” of the Constitutional Court.71 The Court decides on the compliance of the national, domestic law with the Constitution, as well as with international law,72 which forms an integral part of the Serbian legal system.73 The Court also decides on the compliance of ratified international agreements with the Constitution.74

In addition, the Court has a special competence over the protection of

territorial autonomy and local self-government, which maintains the democratic principle of the decentralization of power within Serbia.75 Toward this end, the Court decides on the constitutionality of acts of the autonomous provinces of Vojvodina and Kosovo and Metohija.76

The Constitution and the Law on the Constitutional Court provide that state bodies, public authorities of autonomous territories or local self-government, as well as at least twenty-five deputies in Parliament may initiate proceedings assessing the constitutionality of general acts.77 In addition, the Constitutional 68 Law on the Constitutional Court, arts. 29, 33 (Serbia, 2008), available at http://www.ustavni.sud.rs/page/view/en-GB/237-100030/law-on-the-constitutional-court. 69 SERBIA CONST., art. 166, 167 (2006); Law on the Constitutional Court, art. 7 (Serbia, 2008). 70 SERBIA CONST., art. 167 (2006). 71 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA (Jan. 2009), available at http://www.venice.coe.int/WCCJ/Papers/SRB_ConstCourt_E.pdf. 72 SERBIA CONST., art. 167 (2006). 73 SERBIA CONST., art. 194 (2006). 74 SERBIA CONST., art. 167 (2006). 75 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA (Jan. 2009). 76 Law on the Constitutional Court, art. 45 (Serbia, 2008). 77 SERBIA CONST., art. 168 (2006); Law on the Constitutional Court, art. 29(1) (Serbia, 2008).


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Court itself may initiate proceedings for assessing the constitutionality of a general act upon a two-thirds majority vote of all its judges.78 Where a question arises during a case already before a court of general or special jurisdiction regarding the constitutionality of an existing law, the Court has authority to suspend the case already before the lower court and initiate a separate procedure assessing the constitutionality of the law before its Court.79 If the law is found to be unconstitutional, the Court may keep the law from being promulgated or may invalidate the existing law.80 For proceedings assessing the constitutionality of actions or decisions of an autonomous province authority, the Serbian Government initiates proposals to the Court to review the challenged act.81 The Court may suspend the act’s entry into force until the Court decides on its constitutionality.82

Recent cases before the Constitutional Court have dealt with the political

rights of citizens.83 In a 2003 case on passive voting rights, the Court held that the Law on Election of Deputies was unconstitutional because it failed to protect the constitutional right to exercise one’s opinions through a freely elected representative.84 The challenged provision of the law allowed a political party to terminate a deputy’s term of office if the deputy withdrew membership from the political party that nominated him or her.85 The Court held that political parties cannot be granted authority that would change the composition of the legislature, and that such power violates the citizen’s right to freely elect a representative, as well as the deputy’s constitutionally protected freedom of opinion.86 The Court struck down similar provisions in the Law on Local Elections that made a councilman’s term of office contingent on political party membership.87 The Court held that such authority violated the councilman’s constitutionally protected freedom of thought and right to represent his or her electorate.88

78 Law on the Constitutional Court, art. 50 (Serbia, 2008). 79 Law on the Constitutional Court, art. 63 (Serbia, 2008). 80 Law on the Constitutional Court, art. 58 (Serbia, 2008). 81 Law on the Constitutional Court, art. 67 (Serbia, 2008). 82 Law on the Constitutional Court, art. 67 (Serbia, 2008). 83 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA, p. 4-5 (Jan. 2009). 84 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA, p. 4 (Jan. 2009) (citing Decision IU -197/02 (Serbia 2003)). 85 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA, p. 4-5 (Jan. 2009). 86 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA, p. 4-5 (Jan. 2009). 87 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA, p. 4-5 (Jan. 2009). 88 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA, p. 4-5 (Jan. 2009).


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In addition, in July 2012, the Court struck down some provisions in the Law Establishing Jurisdiction of Vojvodina as unconstitutional.89 The Court eliminated provisions declaring Novi Sad as the capital of the Province and establishing its office in Brussels, Belgium,90 as well as revoked Vojvodina’s jurisdiction over environmental, agricultural, and rural development policies.91 The Court held that such authority over whole areas of policy, rather than only those specifically of interest to the province, went beyond the scope of competence allocated in the Constitution.92

Conflicts of Jurisdiction The Court also has authority to decide conflicts of jurisdiction between the

courts and state bodies, between the Republic and provincial authorities, and between the provincial authorities and local self-government bodies.93 By this power, the Court does not decide on the “matter itself”, but rather decides which body is competent to meritoriously resolve the matter by which the conflict arose.94 For instance, in 2003, the Court delineated the relationship between the legislative, executive, and judicial branches.95 The Court invalidated provisions in two pieces of legislation granting the Minister of Justice authority to remove judges from their posts.96 The Court held that “the principle of separation of powers is violated as well as the principle of judicial independence and autonomy, because these powers affect the internal, personnel-related aspect of judicial independence.”97 The Court also said that only the Supreme Court had the authority to determine the grounds for termination of judicial office and to remove judges.98 This competence of the Court also includes resolving jurisdictional conflicts between the courts.99 The 89 Tanjug, Ruling on Vojvodina Comes Into Force (Jul. 16, 2012), available at http://www.tanjug.rs/news/50979/ruling-on-vojvodina-comes-into-force.htm. See also SERBIA CONST., art. 183 (2006) (setting forth the competences of the autonomous provinces). 90 Sofia News Agency, Vojvodina Loses Capital, Brussels Office (Jul. 11, 2012), available at http://www.novinite.com/view_news.php?id=141156. 91 Sofia News Agency, Vojvodina Loses Capital, Brussels Office (Jul. 11, 2012). 92 Tanjug, Ruling on Vojvodina Comes Into Force (Jul. 16, 2012). See also SERBIA CONST., art. 183 (2006) (setting forth the competences of the autonomous provinces). 93 Law on the Constitutional Court, art. 68 (Serbia, 2008); SERBIA CONST., art. 167 (2006). 94 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA (Jan. 2009). 95 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA, p. 6-7 (Jan. 2009) (citing Decision IU-122/02 (Serbia, Feb. 2003)). 96 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA, p. 6-7 (Jan. 2009) (citing Decision IU-122/02 (Serbia, Feb. 2003)). 97 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA, p. 6-7 (Jan. 2009) (citing Decision IU-122/02 (Serbia, Feb. 2003)). 98 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA, p. 6-7 (Jan. 2009) (citing Decision IU-122/02 (Serbia, Feb. 2003)). 99 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA (Jan. 2009).


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Law on General Administrative Procedures extended the Court’s authority by enabling it to decide the proper administrative court when a case could be heard in multiple administrative courts.100

In proceedings regarding intra-governmental conflicts of competences, one

or both of the conflicting bodies, as well as the person in whose case the conflict arose, may file a motion for resolution.101 The Court may suspend the case in which the conflict of jurisdiction arose until the conflict is resolved.102

Protection of Individual Rights The Court is also tasked with the protection of human and minority rights.103

Although the Court in essence protects human rights in deciding the constitutionality of general acts, the Court’s role in protecting human rights is emphasized through the institution of the constitutional appeal, a legal action through which individuals may realize the direct protection of their constitutionally guaranteed rights.104 Aside from the control of constitutionality and legality, the protection of human and minority rights is now the most important function of the Constitutional Court.105

Any individual may lodge a constitutional appeal against any individual act

or state action that violates or denies the rights or freedoms guaranteed in the Constitution only after other legal remedies, such as the lower-level courts, have been exhausted or where there is no applicable state law.106 For cases in which the applicant’s right to a trial within a reasonable time was violated, a constitutional complaint may be filed without having to first pursue redress in the lower courts.107 Furthermore, constitutional appeals may be filed by third parties, such as other persons or state authorities responsible for the monitoring and exercise of human rights, on behalf of victims with written authorization from the victims.108

100 Law on General Administrative Procedure, art. 28 (Serbia, 2008) available at http://www.mpravde.gov.rs/images/23__law_administrative_procedure.pdf. 101 Law on the Constitutional Court, art. 68 (Serbia, 2008). 102 Law on the Constitutional Court, art. 74 (Serbia, 2008). 103 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA (Jan. 2009). See also Law on the Constitutional Court, art. 45 (Serbia, 2008). 104 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA (Jan. 2009). 105 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA (Jan. 2009). 106 Law on the Constitutional Court, art. 82 (Serbia, 2008). 107 Law on the Constitutional Court, art. 82 (Serbia, 2008). 108 Law on the Constitutional Court, art. 83 (Serbia, 2008).


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To lodge a constitutional complaint or appeal, the injured party has to submit to the Court within thirty days of the date of the violating individual act or state action an appeal describing the act and the human right violated, as well as the motion on which the Court is to decide.109 Where the human right of several persons was violated, such as a class-action suit, decisions of the Court apply to all persons in the same legal position even if they were not named in the appeal.110 If the Court upholds the complaint or appeal, it will invalidate the law, annul the state action, prohibit further performance of the state action, or order other remedies to rectify any “detrimental consequences.”111 Such a decision also provides the legal grounds for the applicant to file a motion for damages with the Damages Commission.112

Additional Competencies Other competences of the Court include its authority to decide upon the

existence of a violation of the Constitution in the procedure for dismissing the President of the Republic.113 This authority is new and was established by the 2006 Constitution.114 The Court also decides on election disputes that have not been proscribed to the competence or jurisdiction of a court.115

In addition, the 2006 Constitution extended the Court’s competence to

decide on the prohibition of activities of political parties or other political organizations to include trade union organizations, citizens’ associations, and religious communities.116 The prohibition has to be based on activities of the association that are aimed at the violent overthrow of constitutional order, violation of human and minority rights, or inciting of racial, ethnic and religious hatred.117 For instance, in June 2012, the Court banned Otačestveni pokret Obraz (Obraz), a right-wing organization that was responsible for inciting national and religious

109 Law on the Constitutional Court, art. 89 (Serbia, 2008) 110 Law on the Constitutional Court, art. 86 (Serbia, 2008). 111 Law on the Constitutional Court, art. 89 (Serbia, 2008) 112 Law on the Constitutional Court, art. 89 (Serbia, 2008) 113 Law on the Constitutional Court, arts. 93-98 (Serbia, 2008). 114 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA (Jan. 2009). 115 Law on the Constitutional Court, arts. 75-79 (Serbia, 2008). 116 Law on the Constitutional Court, arts. 80-81 (Serbia, 2008) (proposals for prohibiting the activities of a political party, trade union organization, citizen’s association, or religious community are made by the Government, the Public Prosecutor, or Registrar’s Office, who bear the burden of providing grounds and evidence for its request). 117 Dr. Bosa Nenadic and Dr. Olivera Vucic, The Impact of the Practice of the Constitutional Court on Society, CONSTITUTIONAL COURT OF SERBIA (Jan. 2009).


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intolerance.118 The Court based its decision on Obraz’s numerous violent attacks committed against members of the homosexual community after the Public Prosecutor filed a motion for prohibition.119

Relation with the Judiciary As mentioned above, the Constitutional Court may suspend a case already

before a court of general or specialized jurisdiction when a question regarding the constitutionality of a statute arises. However, it is unclear whether the Court may suspend a case already before a lower court when the constitutional violation is based on an individual act rather than an unconstitutional law. The Law on the Constitutional Court does provide that constitutional appeals are initiated by the applicant filing the appeal,120 but is silent on whether the Court may independently intervene in such cases. Moreover, the Law provides that the applicant has to first exhaust all legal remedies,121 indicating that an individual may have to wait for a trial court to first render a final decision before it can be brought to the Court.

It is also unclear whether the Constitutional Court can overturn a decision by

the Supreme Court because the Law on Organization of Courts establishes the Supreme Court as Serbia’s highest court.122 The Constitutional Court is not a part of the judiciary and the function of the “constitutional complaint” in making sure the courts themselves comply with the Constitution in conducting their affairs has “led to some tension between the Constitutional and Supreme Court.”123 According to the Chairman of the Constitutional Court, the authority of the Constitutional Court in assessing the constitutionality of judicial decisions is “still being analyzed,” with the Court exercising judicial restraint in reviewing constitutional appeals only to the extent of “clear unconstitutionality.”124

118 Labris, Constitutional Court of Serbia Prohibited Organization "Otacestveni pokret Obraz," (Jun. 14, 2012), available at http://en.labris.org.rs/news/news/constitutional-court-of-serbia-prohibited-organization-qotacestveni-pokret-obrazq.html. 119 Labris, Constitutional Court of Serbia Prohibited Organization "Otacestveni pokret Obraz," (Jun. 14, 2012). 120 Law on the Constitutional Court, art. 82 (Serbia, 2008). 121 Law on the Constitutional Court, art. 82 (Serbia, 2008) 122 SERBIA CONST., arts. 143 (2006). 123 Dr. Bosa Nenadic and Dr. Olivera Vucic, Institutional Guarantees of Independence of Constitutional Courts, CONSTITUTIONAL COURT OF SERBIA, sec. 3 (Jan. 2011). 124 Dr. Bosa Nenadic and Dr. Olivera Vucic, Institutional Guarantees of Independence of Constitutional Courts, CONSTITUTIONAL COURT OF SERBIA, sec. 3 (Jan. 2011).


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Conclusion Serbia’s two supreme judicial authorities, the Supreme Court of Cassation

and the Constitutional Court, are the highest courts of instance for all legal issues in the state. These two judicial bodies, in addition to harmonizing the application of laws across Serbia, provide a number of remedies for an individual whose rights have been violated. As the highest court in matters of general and special jurisdiction, the Supreme Court is responsible for ensuring that the laws of the state are applied consistently. Moreover, the Constitutional Court provides additional protection of individual rights through its powers to oversee the constitutionality of laws and state actions.


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Appendix

COURT SYSTEM OF THE SUPREME COURT OF CASSATION125

Supreme Courtof Cassation

Basic Courts(34)

Commercial Courts

(16)

MisdemeanorCourts

(44)

High Courts(26)

Appellate Courts(4)

Commercial Courtof Appeal

HighMisdemeanor

Court

Administrative Court

125 Organization for Security and Cooperation in Europe, Judicial Institutions in Serbia (Sept. 2011), available at http://www.osce.org/serbia/82759.

serbian supreme judicial authorities

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