On the Margins of Consolidation: The Constitutional Court of Serbia

Abstract

This article argues that the Constitutional Court of Serbia has only marginal role in political and legal life of the Serbian society and, consequently, very modest impact on the process of democratic transition and consolidation. This conclusion is drawn on the basis of the analysis of the Court’s institutional design, substantive constitutional framework and selected cases that involved thorny constitutional and political issues, as well as issues of the country’s compliance with European standards of parliamentary democracy and human rights protection. The article demonstrates how the Court’s deference to the political majority in power and, in particular, the delaying and avoiding strategies it employs, make it irrelevant in the process of democratic consolidation. Yet, the Court plays a more relevant role in the field of the protection of human rights (constitutional complaints competence). However, these are cases which usually do not involve major political interests, so the Court can rule without constraints, relying on the jurisprudence of the European Court of Human Rights, although not always consistently and aptly. Finally, the article demonstrates that the Court’s legitimacy is weak. In respect to the input legitimacy this is due to the non-transparent process of selection of justices and disregard for the selection criteria. Perceptions of the Court by the general and expert public also reveal that it lacks both sociological and normative legitimacy. Moreover, the output legitimacy is poor, since the effect of the Court’s decisions in the articulation of the dominant political values in Serbian society is close to insignificant.

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Notes

  1. 1.

    See http://www.rrpp-westernbalkans.net/en/research/Completed-Projects/2016/Courts-as-Policy-Makers.html. Accessed 11 May 2017.

  2. 2.

    See for e.g. Bugarič (2015), Rosenfeld et al. (2015).

  3. 3.

    See more in Beširević (2014a), pp. 957–958.

  4. 4.

    For an assessment of the role of constitutional courts in the former (Socialist) Yugoslavia, see Accetto (2007), pp. 207–215.

  5. 5.

    Beširević (2014a), p. 962. On other reasons for the establishment for the constitutional court in the former Yugoslavia and their positioning see ibid, pp. 962–964. For different roles constitutional courts play in authoritarian regimes, see Ginsburg (2012).

  6. 6.

    Moreover, some claim that this fact may be detrimental for their active role in the process of democratic transition and consolidation. Beširević (2014a), p. 979.

  7. 7.

    See Basta et al. (1997), pp. 8–9.

  8. 8.

    See Čiplić and Slavnić (eds) (2003), pp. 27–30.

  9. 9.

    Beširević (2014a), p. 959.

  10. 10.

    For more detailed overview of political constellation in this period see Beširević (2014a), pp. 959–960.

  11. 11.

    See Čiplić and Slavnić (eds) (2003), p. 30. See Beširević (2014a), p. 964, note 42.

  12. 12.

    See Grubač in Beširević (ed) (2012), pp. 87–88.

  13. 13.

    Official Gazette RS, 98/06. Already during the Milošević regime, democratic opposition insisted on the adoption of a new constitution. After the democratic change in 2000 various constitutional proposals and ideas about procedure of constitutional change were put forward by political parties, non-governmental organizations and academics; see Lutovac (ed) (2004), Lutovac (ed) (2005). The 2006 Constitution was adopted in the procedure for constitutional change under the 1990 Constitution.

  14. 14.

    Beširević (2014a), p. 960.

  15. 15.

    Ibid, pp. 960–961.

  16. 16.

    Venice Commission (2007), p. 22, para. 105.

  17. 17.

    Ibid, para. 104.

  18. 18.

    Beširević (2014a), pp. 960–961.

  19. 19.

    Venice Commission (2007), pp. 12 and 22, paras. 53 and 105.

  20. 20.

    Judicial power grows under divided politics. See Helmke and Rios-Figueroa (2011), pp. 15–16 and 21–22.

  21. 21.

    Ibid, p. 21.

  22. 22.

    Schwartz (2000), p. 226.

  23. 23.

    Ibid.

  24. 24.

    Sadurski (2011), pp. 2–5.

  25. 25.

    With a value neutral position towards it, we adopt the notion of judicial activism suggested by Sadurski—as the action in which constitutional courts alter the preferences of the parliamentary majority or depart from the views of the constitution makers. Sadurski (2001), pp. 27–28 and Sadurski (2014), p. 131.

  26. 26.

    Sadurski (2011), p. 5.

  27. 27.

    Ibid, pp. 2–3.

  28. 28.

    Ibid, p. 3.

  29. 29.

    I.e. Progress Reports on Serbia issued by the European Commission and opinions of the European Commission for Democracy through Law (Venice Commission).

  30. 30.

    These included eight academics, three SCC judges, one Court of Appeal judge, two MPs (one former and one incumbent) and two independent experts. The interviews were conducted in April, May and November 2015; their transcripts are on file with the authors.

  31. 31.

    Constitution (n 13), Art. 166.

  32. 32.

    Ibid, Art. 172(1) and (6).

  33. 33.

    Ibid, Art. 172(6).

  34. 34.

    Ibid, Arts. 103(2-3) and 173(2).

  35. 35.

    Ibid, Arts. Art. 55(5)), 173(1) and The Law on the CC, Art. 16.

  36. 36.

    Ibid, Art. 174(1) and (2).

  37. 37.

    See Peerenboom (2010). The same stands for judicial empowerment, see Ginsburg (2003); Hirschl (2004).

  38. 38.

    However the possibility of renewal of their mandate could mean that justices would be more driven by the need to satisfy those who would re-elect/re-appoint them than by interest in the protection of the Constitution. Nenadić (2012), p. 154. This was also mentioned by some interviewees (on file with the authors).

  39. 39.

    Constitution (n 13), Art. 172(2).

  40. 40.

    Ibid, Art. 172(3). This mirrors the procedure for the election of justices of the Italian Constitutional Court. See more in Nenadić (2012), p. 92.

  41. 41.

    Constitution (n 13), Art. 172(5).

  42. 42.

    Official Gazette RS, 09/07, 99/11, 18/13 (decision of the CC), 40/15 and 103/15.

  43. 43.

    See Jerosimić (ed) (2008), pp. 106–107; Petrović (ed) (2011), p. 21.

  44. 44.

    For detailed account of the practice of selecting bodies see Papić and Đerić (2016), pp. 11–15.

  45. 45.

    Nenadić (2012), p. 148.

  46. 46.

    Ibid, p. 150.

  47. 47.

    See Ginsburg (2003), pp. 22–33. On this and Sadurski’s general view on the approach of post-communist countries in selecting constitutional court justices, see Beširević (2014a), p. 973.

  48. 48.

    Justice Nenadić had a similar position. Nenadić (2012), pp. 103 and 150.

  49. 49.

    See similar conclusion in Beširević (2014a), p. 973.

  50. 50.

    On file with the authors.

  51. 51.

    Večernje novosti, 12 December 2016. The mandate of those justice appointed by the Supreme Court of Cassation in 2010 will expire in 2019.

  52. 52.

    Papić and Đerić (2016), pp. 14–15.

  53. 53.

    Ibid. See also Marinković (2014), p. 105. See also media reports about alleged involvement of a SCC justice in abduction and fraud, See Peščanik of 27 July 2012.

  54. 54.

    See Papić and Đerić (2016), p. 14, n. 50.

  55. 55.

    This person was allegedly implicated in cases of abduction and fraud. See Peščanik of 27 July 2012 and 19 February 2013.

  56. 56.

    In 2008 this was inevitable due to the minimum age requirement for justiceship (40 years).

  57. 57.

    Constitution (n 13) Art. 167(1).

  58. 58.

    This type of control also includes control of whether other ‘general acts’ are in accordance with laws; whether statutes and general acts of autonomous regions and municipalities are in accordance with the Constitution and laws; and, finally, whether general acts of organizations with delegated public powers, of political parties, unions, associations, as well as collective agreements, are in accordance with the Constitution and laws.

  59. 59.

    Constitution (n 13) Arts. 168 (1) and 175(2).

  60. 60.

    Ibid, Art. 168 (2).

  61. 61.

    See Papić and Đerić (2016), p. 18, n. 71.

  62. 62.

    Constitution (n 13), Art. 169 (1) & (2).

  63. 63.

    The constitutional complaint procedures existed before the Constitutional Court of the Federal Republic of Yugoslavia and the Court of the State Union of Serbia and Montenegro, but were never truly operational. Consequently, constitutional complaints to these courts were not considered as effective legal remedies, see Petrović (ed) (2006), pp. 41–42.

  64. 64.

    Constitution (n 13) Art. 170.

  65. 65.

    For the detailed account of the caseload see Papić and Đerić (2016), p. 18, n 75.

  66. 66.

    Constitution (n 13) Art. 167(2), points 1–4.

  67. 67.

    Ibid, Art. 167(2), points 5 and 6 and 167(3-4).

  68. 68.

    Ibid, Art. 118(3).

  69. 69.

    Ibid, Art. 175(1).

  70. 70.

    Ibid, Arts. 16(2) and 194(4).

  71. 71.

    Ibid, Art. 194(5).

  72. 72.

    Ibid, Art. 194(4).

  73. 73.

    Ibid, Art. 16(2). Direct application of human and minority rights is also provided in the Art. 18(2).

  74. 74.

    Ibid, Art. 18(3).

  75. 75.

    For more, see Beširević and Marinković (2012), pp. 428–429. See also Petrović (ed) (2012), p. 57.

  76. 76.

    Dimitrijević et al. (2007), p. 68.

  77. 77.

    Moreover, the SCC had the dubious practice of applying non-binding international documents, while refusing to do so with binding ones (viz. international treaties). Ibid.

  78. 78.

    Nenadić (2012), p. 72.

  79. 79.

    See Beširević and Marinković (2012), pp. 428–429.

  80. 80.

    See ibid and Petrović (ed) (2012), p. 57.

  81. 81.

    Beširević and Marinković (2012), pp. 409–413.

  82. 82.

    Ibid, pp. 417–422.

  83. 83.

    Sadurski (2011), pp. 2–3.

  84. 84.

    See also Beširević (2014a), pp. 966–971, 974.

  85. 85.

    On file with the authors.

  86. 86.

    See Čiplić and Slavnić (2003), p. 28.

  87. 87.

    See Beširević (2014a), p. 967.

  88. 88.

    Decision of the CC, IUz-353/2009, 12 July 2012, Official Gazette RS, 67/12. See also in Beširević (2014a), pp. 968–969.

  89. 89.

    See decision IUz-231/202 of 3 July 2012, Official Gazette RS, 68/12, 27. Parliamentary and presidential elections were held on 6 May 2012, with no party winning the overall majority in the National Assembly. On 20 May 2012, the opposition presidential candidate Tomislav Nikolić won the second round of presidential elections. After it became clear that the Democratic Party, which previously led the government coalition, could not secure parliamentary majority, the president gave the mandate to form the government to the leader of the Socialist Party of Serbia on 28 June 2012, who had the support of the hitherto opposition Progressive Party of Serbia. The above SCC decision was adopted on 3 July 2012, when it was clear who would form the new government. It is interesting that the SCC was not able to take decision on this matter at its previous session held on 19 June 2012 (when it was still unknown who would form the new government), because, according to the SCC press statement, there was not a sufficient majority for the proposal of the justice rapporteur, see Press Release of 19 June 2012.

  90. 90.

    See Beširević (2014a), pp. 969–971.

  91. 91.

    Decision of the CC, VIIU-249/2009, 12 June 2012, Official Gazette RS, 69/12, p. 89 (hereinafter: Obraz Decision). The proceedings were initiated on 25 September 2009.

  92. 92.

    Conclusion of the CC, IUo-247/2013, 10 December 2015, Official Gazette RS, 13/15, p. 9 (hereinafter: Brussels Agreement Decision).

  93. 93.

    The official title of the agreement is ‘First agreement of principles governing the normalization of relations’, but it is commonly known as the “Brussels Agreement”. It was initialled on 19 April 2013 in Brussels. The text was made out in two copies, one initialled by Serbian Prime Minister Dačić and EU High Representative for External Relations Ashton, another by Kosovo Prime Minister Thaçi and Ashton. Despite its official title, the agreement primarily deals with the modalities of integration of Kosovo’s northern municipalities with an ethnic Serb majority into Kosovo structures, viz. establishment and competences of an Association of Serb majority municipalities in Kosovo, as well as the integration of north Kosovo’s police and judiciary into Kosovo’s institutions.

  94. 94.

    Brussels Agreement Decision, p. 9.

  95. 95.

    For the political incentives and motives to reach an agreement, see Papić (2015), pp. 257–265.

  96. 96.

    Papić and Đerić (2016), p. 35, fn. 181.

  97. 97.

    See Sect. 2.2.

  98. 98.

    Brussels Agreement Decision, pp. 13, 22.

  99. 99.

    Our translation. See his interview for the daily Politika on 6 February 2011.

  100. 100.

    On file with the authors.

  101. 101.

    See Dissenting op. of Justice Vučić, Brussels Agreement Decision, p. 32. See also See Dissenting opinion of Justice Stojanović, Brussels Agreement Decision, pp. 23–24; see, also, Zoran Ivošević, Danas, 20 April 2014.

  102. 102.

    Prohibition of an association may be requested by the public prosecutor, Government or by the agency maintaining the register of associations, see Law on the Constitutional Court (n. 42), Art. 80. Three of these cases concerned organizations of militant far-right nationalists (Obraz Decision, while one involved groups of militant soccer fans who were also far-right extremists. Decision of the CC, VIIU-482/2011, 14 November 2012, Official Gazette RS, 6/13, pp. 4 and 12 (hereinafter: 1389/Naši decision). The proceedings were initiated on 18 October 2011. Decision of the CC, VIIU-171/2008, 2 June 2011, Official Gazette RS, 50/11, p. 320 (hereinafter: Nacionalni stroj Decision). The proceedings were initiated in 2008. For the latter, see Conclusion of the CC, VIIU-279/2009, 17 March 2011, Official Gazette RS, 26/11, p. 68 (hereinafter: Soccer fans Decision). The proceedings were initiated on 16 October 2009. In the fifth case, concerning association 1389 (Pokret 1389), the public prosecutor withdrew its request and the proceedings were terminated, see SCC’s ruling (rešenje), VIIU 250/2009 of 2 November 2011.

  103. 103.

    Soccer fans Decision.

  104. 104.

    Nacionalni stroj Decision, supra n. 102. The contentious issue in this case was whether the SCC had jurisdiction to rule on secret organizations, which were prohibited by the Constitution itself; for a negative view see dissenting opinion of Justice Vučić, ibid, whose arguments are repeated by Petrov (2013), p. 216.

  105. 105.

    Obraz Decision.

  106. 106.

    See 1389/Naši Decision.

  107. 107.

    On the basis of the analysis of different decisions than the ones which were analysed in detail for the purpose of this paper. Namely, the decisions on the emergency regulations, decentralization (autonomy of Vojvodina) and judicial reform. See Beširević (2014a), pp. 966–971. She also analysed the cases concerning prohibition of certain associations that we also analysed in detail, see ibid, pp. 974–976.

  108. 108.

    On file with the authors.

  109. 109.

    Decision of the CC, IUz-52/2008, 21 April 2010, Official Gazette RS, 34/10, p. 38 (hereinafter: Decision LLE).

  110. 110.

    See Art. 43 of the Law on the Local Elections, Official Gazette RS, 129/07.

  111. 111.

    See Art. 84 of the Law on the Election of National Deputies, Official Gazette RS, 35/00, 69/02, 57/03, 72/03, 18/04, 85/05 and 101/05.

  112. 112.

    Decision of the CC, IUp-42/2008, 14 April 2011, Official Gazette RS, 28/11, p. 22 (hereinafter: Decision LEND).

  113. 113.

    In-depth analysis of these decision is Papić and Đerić (2016), pp. 26–33.

  114. 114.

    See n 110.

  115. 115.

    See Nenadić (2008), pp. 8 and 13. The election law in force from 1992 and 1997 secured political parties' control over deputies by providing broad grounds for the termination of their mandate, so ‘blank resignations’ became obsolete. After the SCC ruled these grounds unconstitutional in 2003, ‘blank resignations’ came back into fashion in the National Assembly. See more in ibid, p. 13.

  116. 116.

    Article 102(2). This provision was a reaction of parliamentary political parties to the 2003 decisions of the SCC, which had annulled certain provisions of previous electoral legislation as unconstitutional because they provided for overbroad grounds for the termination of the mandate. See Marinković (2012a), p. 138. On Art. 102(2) see also Marković (2006), pp. 16–17. One of the justices (Nenadić), claimed that it would be best if Art. 102(2) remained dead letter until the first constitutional amendments since it was hard to reconcile it with other provisions and the spirit of the Constitution. See Nenadić (2008), p. 20.

  117. 117.

    Serbia Progress Report (2010), p. 7.

  118. 118.

    European Commission for Democracy Through Law (Venice Commission) (2007), paras 53 and 106, respectively.

  119. 119.

    See n 117.

  120. 120.

    Decision on constitutional complaint, Už-3238/2011, 8 March 2012, Official Gazette RS, 25/12 (hereinafter: Transgender Decision).

  121. 121.

    Constitution (n 13), Art. 23.

  122. 122.

    Transgender Decision, p. 32, para 6.

  123. 123.

    On file with the authors.

  124. 124.

    The example is Transgender Decision (n 120).

  125. 125.

    Entered into force on 27 January 1980, United Nations, Treaty Series (1987), p. 331.

  126. 126.

    Ibid, Art. 3.

  127. 127.

    Ibid, Art. 31-32, which reflect customary rules of interpretation of international instruments.

  128. 128.

    According to Crawford, ‘[t]he conclusion must be that the status of an entity as a State is, in principle, independent of recognition…’ Crawford (2006), p. 28.

  129. 129.

    The dissenting justices described this as powerlessness of the SCC’s majority to deal with their arguments. See Dissenting op. of Justice Vučić, Brussels Agreement Decision, p. 32.

  130. 130.

    See ibid and Dissenting op. of Justice Stojanović, Brussels Agreement Decision, p. 25.

  131. 131.

    See Dissenting op. of Justice Stojanović, Brussels Agreement Decision, p. 25. Also, for a hint about the SCC’s deference to the Government, see Dissenting op. of Justice Vučić, ibid, p. 32.

  132. 132.

    See also Marinković (2012b), p. 1634.

  133. 133.

    See, e.g., Beljanski (2013); Marinković (2013); Petrov (2013).

  134. 134.

    See Marinković (2013), pp. 1603–1604; Beširević (2014b), pp. 153–155. On the concept of militant democracy, see Capoccia (2013), p. 208.

  135. 135.

    Ždanoka v Latvia (2006), para. 100; Refah Partisi v. Turkey (2003), para. 100.

  136. 136.

    On file with the authors.

  137. 137.

    See Sect. 1.3.

  138. 138.

    As noted by Beširević and Marinković (2012), pp. 428–429.

  139. 139.

    See Transgender Decision, p. 32, para 6, see also cases mentioned in Beširević and Marinković (2012), pp. 409–413.

  140. 140.

    As was in the cases concerning prohibition of citizens’ associations. Papić and Đerić (2016), pp. 46–48. See also Beširević and Marinković (2012), pp. 417–422.

  141. 141.

    Politika, 10 July 2012 (Derikonjić 2012)

  142. 142.

    See Nenadić (2012), p. 67. This was also noted in the interviews with two justices of the SCC (on file with the authors).

  143. 143.

    More than a third of our interviewees had such a claim. On file with the authors. See also Danas, 1 August 2011.

  144. 144.

    This was also noted in the interviews. On file with the authors.

  145. 145.

    It did so more than sixty times in recent years. Kartag-Odri (2014), p. 212.

  146. 146.

    For example, the amendments to the Act on Pension and Disability Insurance and to the Act on the Execution of Criminal Punishments were adopted without taking into account the recommendations of the SCC. See Petrović (ed.) (2014), p. 84.

  147. 147.

    This was the case with the provision of the Law on Privatization, which was described in detail in the interview with the opposition MP. Another interviewee, a former president of the SCC, also pointed out such practice of the National Assembly. On file with the authors.

  148. 148.

    One attributed this to the inefficiency of the CC. On file with the authors.

  149. 149.

    This was also mentioned in the interviews. On file with authors.

  150. 150.

    Law on the CC (n 42), Art. 49(2).

  151. 151.

    Ibid.

  152. 152.

    See more Papić and Đerić (2016), p. 20.

  153. 153.

    Ibid, p. 21.

  154. 154.

    Ibid.

  155. 155.

    On file with the authors.

  156. 156.

    On this factor in Chile, see Hilbink (2007).

  157. 157.

    See also Beširević (2014a), pp. 971–973.

  158. 158.

    All Serbian governments since 2001 have supported accession to the EU. Since the split of the Serbian Radical Party and the creation of the Serbian Progressive Party over the question of support for the Association and Stabilization Agreement with the EU in 2008, most of the opposition has also been pro-EU. Since 2012, the Serbian Progressive Party has been the main party in the government coalition, which continues to be pro-EU, while the Democratic Party, which previously led the government, is in opposition.

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Acknowledgements

We are grateful to Jernej Letnar Černič who provided us with insightful comments of this article. We are also indebted to Jovana Stopić, Nevena Dičić Kostić, Dušan Pokuševski and Nikolina Milić of the Belgrade Centre for Human Rights for their research support as well as to Lidija Basta Fleiner, Violeta Beširević, Edin Hodžić, Marko Milanović and Wojciech Sadurski who provided comments on the Working Paper on which this article is based. The Working Paper was produced under the auspices of the Regional Research Promotion Programme (RRPP) within the project “Courts as Policy-Makers?: Examining the Role of Constitutional Courts as Agents of Change in the Western Balkans”, led by Analitika Center for Social Research from Sarajevo and funded by the University of Fribourg and Swiss Agency for Development and Cooperation (SDC), available at http://www.rrpp-westernbalkans.net/en/News/Research-results-on–Courts-as-Policy-Makers-/mainColumn Paragraphs/0/text_files/file0/Constitutional%20Court%20Serbia.pdf. Accessed 31 October 2017. Usual disclaimer applies.

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Papić, T., Djerić, V. On the Margins of Consolidation: The Constitutional Court of Serbia. Hague J Rule Law 10, 59–82 (2018). https://doi.org/10.1007/s40803-017-0066-x

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Keywords

  • Constitutional Court Justices
  • European Court Of Human Rights (ECtHR)
  • Political Majority
  • Dominant Political Values
  • Democratic Consolidation