In order to determine the real practical weight and importance of these constitutional rights and the actual protection afforded to them by the CCS, prior to in-depth analysis, we will first engage in a general formal analysis of these cases, mainly based on their formal features, such as the overall number of cases, their structure, the subject matter and outcome of the constitutional disputes, the initiators, the direction of initiatives, the length of the procedure before reaching a decision etc.
To identify all the cases of normative control regarding minority rights, research was conducted by reading all the CCS decisions published in bulletins of the CCS from 1990
74 papić – djerić 2018, p. 59.
75 beŠirević 2014, pp. 972 – 973.
76 Tripković 2011, pp. 744 – 745.
77 papić – djerić 2018, p. 69.
78 papić – djerić 2018, pp. 72 -73, Tripković 2011, pp. 749, 751.
79 Dubravka valić-nedeljković: Monitoring izveštavanja o delatnosti Ustavnog suda Srbije – Monitoring portala Ustavnog suda i izveštavanja vodećih medija o Ustavnom sudu od januara 2018. do juna 2019. Godine.
[Monitoring of Reporting on the Activities of the Serbian Constitutional Court – Monitoring of the Internet-site of the Constitutional Court and Reporting of Leading Media on the Constitutional Court from January 2018 till June 2019]. In: Slobodan BeljanSki – Marijana pajvančić – Tanasije Marinković – Dubravka valić-ned
-eljković (eds.): Odnos Ustavnog suda i sudske vlasti – Stanje i perspective. [Relationship of the Constitutional Court and Judicial Power – Situation and Perspectives]. CEPRIS, Beograd, 2019, pp. 84-85.
to 2019, as well as by reading and analysing all available court files of identified cases, primarily accessible in various archives.
The conducted research identified a total of 45 rules related to the constitutional rights of national minorities. This number includes both decisions (in which the CCS decided on the cases’ merits through complete procedure) and orders (mainly procedural decisions on ill-founded initiatives) in which the court interpreted and applied constitutional pro-visions guaranteeing minority rights. In 23 cases the CCS ruled on the constitutionality of provisions in the legislative acts of the National Assembly80, while in 22 other cases the court decided on the constitutionality and legality of provisions in the regulations and bylaws of local and provincial assemblies (in 16)81, state administration (in five)82 and in one on state owned company act83.
Regarding the length of the procedures, there is an indication for the potential presence of the so called delaying strategy of the CCS identified by scholars. In 15 cases the CCS reached the decision after more than two years, among which were included relatively simple cases or cases where the procedure was eventually completed with an order reject-ing the initiative without merits.
The procedures of the CCS were initiated by groups of deputy members of the National or Provincial Assemblies, political parties, state and local authorities, NGOs and individuals etc. In 15 cases, minority self-governments, minority ethnic political parties, their presi-dents or NGOs protecting minority rights initiated procedures before the CCS, claiming that the contested provision(s) of a legislative act or a ministerial regulation violated their constitutional rights. In six other cases, Serbian central authorities initiated procedures, in all such cases claiming that local self-government regulations of municipalities pop-ulated dominantly by persons belonging to national minorities violated the law and the Constitution. In six further cases, the initiatives were launched by Serbian (mainly na-tionalist) political parties or NGOs claiming that the contested law or regulation violated the constitution or law in favour of national minorities. In an additional three cases, local
80 Decision IU-330/92 from 14 October 1993, Decision IU-328/92 from 14 October, Decision IU-7/98 from 1 June 2000, Decision IU-178/2000 from 23 November 2000, Order IU-110/2004 from 15 July 2004, Order IU-97/2008 from 18 December 2008, Order IU-78/2008 from 25 December 2008, Order IU-133/2008 from 22 December 2009, Decision IUz-52/2008 from 21 April 2010, Decision IUp-42/2008 from 14 April 2011, Order IUz-883/2010 from 8 December 2011, Order IUz-611/2011 from 22 March 2012, Order IUz-25/2011 18 April 2012, Decision IUz-353/2009 from 10 July 2012, Order IUz-882/2010 from 17 January 2013, Decision IUz-27/2011 from 3 October 2013, Order IUz-116/2009 from 31 October 2013, Decision IUz-882/2014 from 16 January 2014, Decision IUz-479/2014 from 9 April 2015, Decision IUz-166/2014 12 May 2016, Order IUz 248/2017 from 16 April 2019, Order IUz 50/2019 from 18 June 2019, Order IUz-202/2018 from 16 October 2019.
81 Decision IU-409/91 from 24 June 1993, Decision IU-27/99 from 11 January 2001, Decision IU-111/93 from 25 January 2001, Decision IU-350/93 from 25 January 2001, Decision IU-64/94 from 25 January 2001, Decision IU-138/95 from 1 February 2001, Decision IU-171/2002 from 5 June 2003, Order IU 334/2004 from 2 December 2004, Decision IU 294/2002 from 24 February 2005, Order IU-390/2003 from 26 June 2008, De-cision IU-446/2004 from 18 February 2010, DeDe-cision IU-394/2005 from 22 June 2010, DeDe-cision IUo-360/2009 from 5 December 2013, Order IUo-399/2011 from 10 June 2014, Order IUo-199 from 19 February 2015, Order IUo-56/2016 from 28 February 2017.
82 Decision IU-297/96 from 8 February 2001, Order IUp-42/2008 from 8 April 2008, Order IUo-33/2011 from 13 June 2012, Order IUo-1259/2010 from 5 February 2013, Order IUo-272/2015 from 19 July 2017.
83 Decision IU-505/91 from 22 April 1993
authorities initiated a procedure. Finally, in all other cases, various NGOs and individuals without any clear political background initiated the procedures.
The outcome of the constitutional disputes reveals the following: in 27 out of 45 cases, the CCS rejected completely the initiatives and upheld the constitutionality and legality of the disputed provisions, while in 18 cases the court declared unconstitutional, null and void some of the contested provision. In 23 constitutional disputes involving the provisions of the legislative acts of the National Assembly, the CCS declared some pro-visions unconstitutional only in four cases. In the case of contested propro-visions in various provincial and municipal regulations, altogether 16 procedures were initiated; in 10 the contested provisions were completely or at least partially declared unconstitutional or un-lawful, while in only six cases were the local regulations completely upheld by the CCS.
Regarding the provisions of bylaws enacted by central administrative authorities, the in-itiatives were successful in one case, while in the other four cases the bylaw remained in force after the constitutional scrutiny.
It is interesting to link successful and unsuccessful initiatives with various groups of ini-tiators, as well as with the direction of the claims in initiatives. In doing so, the following relationships become visible:
- In all cases where minority self-governments, minority political parties or NGOs initiated the procedure before the CCS, initiatives were completely rejected by the CCS and the constitutionality of the contested provisions was upheld by the court,84
- The CCS has never declared a provision of the law unconstitutional by claiming that such a provision violated a minority right, and only once did in relation to a provision in a local assembly regulation because it violated some minority right.85
- The CCS often declared unconstitutional or unlawful provisions granting some rights and privileges to persons belonging to national minorities.86
84 Decision IU-328/92 from 14 October 1993, Decision IU-330/92 from 14 October 1993, Decision IU 297/96 from 8 February 2001, Decision IU-7/98 from 1 June 2000, Decision IUp-42/2008 from 21 April 2011, Decision IUz-52/2008 from 21 April 2011, Order IUz-611/2011 from 22 March 2012, Order IUo-33/2011 from 13 June 2012, Order IUo-1259/2010 from 5 February 2013, Decision IUz-479/2014 from 9 April 2015, Order IUo-56/2016 from 28 February 2017, Order IUo-272/2015 19 from July 2017, Order IUz 248/2017 from 16 April 2019, Order IUz 50/2019 from 18 June 2019, Order IUz-202/2018 from 16 October 2019.
85 In Decision 446/2004 from 18 February 2010, the CCS declared unlawful a provision in the regulation of the municipality of Bačka Topola because it restricted the official use of the Slovak and Ruthenian language. B.
Topola is a municipality in Vojvodina, dominantly inhabited by ethnic Hungarians.
86 Cases where provisions guaranteeing minority rights were declared unconstitutional or unlawful are the following: Decision IU-505/1991 from 22 April 1993, Decision IU-491/1992 from 24 June 1993, Decision IU-111/93 from 25 January 2001, Decision IU-350/1993 from 25 January 2001, Decision IU-64/94 from 25 January 2001, Decision IU-27/99 from 11 January 2001, Decision IU-294/02 24 February 2005, Decision IUp-42/08 from 8 April 2008, Decision IUo-360/2009 from 5 December 2013, Decision IUz-882/2010 from 16 January 2014, Decision IUz-166/2014 from 12 May 2016.
- All initiatives of central authorities contesting the constitutionality and legality of local self-government regulations were successful and the CCS declared these regulations null and void.87
- Out of 23 cases, only in four cases did the CCS declare some provisions of the legislative acts of the National Assembly unconstitutional; in all four cases the CCS did so after the ruling political party which supported the enactment of those laws in the National Assembly lost its power and position in elections.88 - Successful initiatives challenging legislative acts were launched once by
oppo-sition members of the National Assembly (at the time of the initiative), in two cases by various NGOs, and in one case by an administrative authority.