The constitutional adjudication, the judicial review of legislative acts, has a long tradition in Serbia (as in other successor states of the socialist Yugoslavia), at least compared to other ECE states.42 Judicial review in Serbia has been exercised in continuity by a special Kelsenian-type constitutional court, outside the judicial branch, in the so-called concen-trated system.43 Despite important novelties introduced by the Serbian constitutions in 1974, 1990 and 2006, the constitutional review of statutes remained within the concen-trated system by the constitutional court outside the judicial branch. Stipulations in the 2006 constitution intended to make the CCS more independent and powerful.
3.1. Status and Position of the CCS and its Judges
The constitutional provisions on the CCS are concentrated in Section Six of the Con-stitution (Articles 166-175). The CCS is defined as “autonomous and independent state body which shall protect constitutionality and legality, as well as human and minority rights and freedoms”. The CCS has 15 judges with nine year mandates, each judge hav-ing the possibility of one re-election. 44 Judges must fulfil the following requirements beyond those applicable for all public servants: be a minimum age of 40 years old and be a prominent lawyer with at least 15 years of practice in law. 45 In the appointment of judges, all branches of state power participate, ensuring a kind of balance between them;
the National Assembly elects five judges from the list of 10 candidates proposed by the President of the Republic, the President of the Republic appoints five judges from the list of 10 candidates proposed by the National Assembly and the Supreme Court appoints five judges from the list of 10 candidates proposed jointly by the High Judicial Council and the State Council of Prosecutors.46 The president of the CCS and its deputy are elected among the judges by themselves.47 The CCS judges enjoy full immunity against any prosecution, as do the members of the National Assembly, and only the CCS itself can decide on the lifting of this immunity.48 Judges cannot hold any other public function and cannot participate in any other professional activity except for teaching in law schools in Serbia.49 A judge of the CCS may be dismissed only if he or she violates the incompatibil-ity rules, loses his or her working capacincompatibil-ity or is sentenced for a crime, making him or her
“dishonoured” for the office.50 Even in these cases the CCS itself decides on the extent to
42 The Constitutional courts and constitutional review were established in socialist Yugoslavia and in its Republics, including Serbia with the 1963 constitutions. See more in Olivera vučić – Vladan PeTrov – Darko siMović: Ustavni Sudovi Bivših Jugoslovenskih Republika. [Constitutional Courts of Former Yugoslav Repub-lics]. Dosije studio, Beograd, 2010, pp. 69-93.
43 Alan brewer-Carrias: Introduction/Hans Kelsen, Judical Review, and the Negative Legislator. In: Alan brewer-Carias (ed.): Constitutional Courts as Positive Legislators. Cambridge University Press, Cambridge, 2011, pp. 6-8.
44 Ustav Republike Srbije [Constitution of the Republic of Serbia], Službeni glasnik Republike Srbije [Offi-cial Gazette of the Republic of Serbia], number 98/2006, Art 172. par. 1. and 6.
45 Ibid. Art. 172. par. 5.
46 Ibid. Art. 172. par. 3.
47 Ibid.
48 Ibid. Art. 173. par. 2.
49 Ibid. Art. 173. par. 1.
50 Ibid. Art. 174. par. 2.
which the conditions for dismissal are met, before the National Assembly can decide on the dismissal.51
3.2. Competences
On account of, and through its broad competences, the CCS falls within the group of most powerful constitutional courts, allowing the CCS to be significant actor in constitution-al and politicconstitution-al matters.52 The competences of the CCS are exclusively regulated by the constitution and they cannot be enlarged by the legislation, yet the constitutional text in this respect is not precise enough.53 Most of the CCS competences are stipulated in Article 166 of the Constitution, but they are stipulated as well in several other provisions. The competences of the CCS are the following:
- it controls the constitutionality of ratified international treaties, laws and other legislative acts,
- it controls the compatibility of the laws with any ratified international treaties and with the general principles of international law,
- it controls the legality of bylaws,
- it controls the constitutionality and legality of the regulations of autonomous provinces and local self-governments,
- it controls the constitutionality and legality of collective agreements, acts of pub-lic institutions, political parties, syndicates, and civic associations.54
Any law ruled by the CCS as unconstitutional, such as other general legal acts ruled un-constitutional or unlawful, ceases to exist on the day the decision of the CCS is published in the official gazette.55 It is notable that the CCS controls the constitutionality and legality of various bylaws and regulations, not only laws enacted in the National Assembly.
Anyone can initiate normative control by the CCS (actio popularis) and in these cases the CCS formally accepts or rejects the initiative with an order.56 If 25 members of the Nation-al Assembly, the Government, courts or other empowered state or locNation-al authority initiate the control procedure, the procedure begins without the order of the CCS.57
There is also an ex ante control of the laws enacted by the National Assembly but not promulgated yet by the President of the Republic, which can be initiated by one third of
51 Ibid. Art. 172. par. 3.
52 Violeta beŠirević: Governing without Judges – The politics of the Constitutional Court in Serbia. In:
International Journal of Constitutional Law, 2014/4, pp. 954-979, at p. 964., Boško Tripković: A Constitutional Court in Transition: Making Sense of Constitutional Adjudication in Post-authoritarian Serbia. In: brewer -cariaS 2011, pp. 741- 742., Tatjana papić – Vladimir djerić: On the Margins of Consolidation: The Constitutional Court of Serbia. In: Hague Journal on the Rule of Law, 2018/1, pp. 59-82, at p. 66.
53 Marijana pajvančić: Odnos između sudske vlasti i Ustavnog suda– uporedna studija. [The Relationship between the Judiciary and the Constitutional Court – Coparative Analyses]. Konrad Adenauer Stiftung, Buku-rešt-Novi Sad, 2018, p. 31.
54 Constitution of the Republic of Serbia, Art. 166. par. 1.
55 Ibid. Art. 168. par. 3.
56 Ibid. Art. 168. par. 2.
57 Ibid. Art. 168. par. 1.
the members of the National Assembly.58 In such cases, the CCS shall decide within seven days. If the initiative is rejected, the ex post control is not allowed.59
Besides the abovementioned classical constitutional court competences, the CCS can suspend regulations of an autonomous province before they come to force if the Govern-ment initiates the control of such regulation before its promulgation.60 The CCS decides on the constitutionality of individual court and administrative decisions based upon the constitutional complaints of all persons claiming that these final decisions or acts violated their constitutional rights, 61 resolves conflicts of competences between courts and admin-istrative bodies, such as between central, provincial or local administrational bodies62, decides on electoral disputes not within the competence of regular courts,63 decides on the banning of political parties, trade unions, civic associations and religious organizations,64 decides on appeals of dismissed judges65 and public prosecutors,66 decides on the viola-tion of the constituviola-tion by the President of the Republic within the procedure for dismiss-al67 and decides on the complaints stemming from the abridgment of the competences of autonomous provinces or local self-governments.68
The CCS decides in sessions with a majority vote of all the judges.69 Everyone is obliged to obey and implement the decisions of the CCS.70 If necessary, the CCS decides about the manner by which a decision should be executed.71 The internal organization, the pro-cedure before the CCS and the legal effects of its decisions are regulated by the Law on the Constitutional Court.72
3.3. General Evaluation of the Performance of the CCS
Despite the relatively long history of the CCS, its case law has mainly remained outside the interest of legal scholars (even) in Serbia. Those scholars that have published arti-cles on the CCS in international journals in recent years have emphasized that the CCS, despite its formal strong competences, has demonstrated no will or capacity to become an active actor in the process of democratic consolidation, in actively shaping the institu-tional and legal framework, in maintaining relationships and a balance between branches of power, or in protecting human rights.73 On the one hand, the CCS has demonstrated restraint and deference towards the actual ruling majority in political branches of power
58 Ibid. Art. 169. par. 1.
59 Ibid. Art. 169. par. 4.
60 Ibid. Art. 186.
61 Ibid. Art. 170.
62 Ibid. Art. 167. par. 2. points 1-4.
63 Ibid. Art. 167. par. 2. point, 5.
64 Ibid. Art. 167. par. 3. and Art. 44. par. 3.
65 Ibid. Art. 148. par. 2. and Art. 155.
66 Ibid. Art. 161. par. 4.
67 Ibid. Art. 118. par. 3.
68 Ibid. Art. 193. par. 1. and 2.
69 Ibid. Art. 175. par. 1.
70 Ibid. Art. 171. par. 1.
71 Ibid. Art. 171. par. 2.
72 Ibid. Art. 175. par. 3.
73 beŠirević 2014, p. 966.
in the exercising of its judicial review powers, while, on the other hand, it has shown more determination in striking down rulings of courts in individual constitutional com-plaint proceedings.74 Regarding its deference in the judicial review of legislative acts and executive regulations of the government, authors have highlighted two groups of reasons, both interacting with one another. The first group stems from a culture of restraint or the lack of tradition of judicial independence and judicial power. Generally, justices in Serbia, particularly constitutional court justices, have not been ready or willing to con-front those in political power or to involve themselves at all in political disputes.75 This behaviour requires, and perpetuates, keeping as much as possible to the status quo. The normative pillar of such deference is based on the ideology of legalism, focusing more on the legislative procedure and less on the content of the provision, and also on applying dictionary style, textual interpretation technics, thereby avoiding going beyond the gram-matical meaning of phrases interpreting principles and applying constitutional theory.76 In order to position itself in the favour of the political majority, the CCS has been applying most frequently the so-called “delaying strategy” waiting for a change in, or of, the ruling political majority for the adopting of a law or waiting for the political majority to repeal or amend a law.77 However, it is worthy of mentioning that not all periods of the CCS should be characterized by equal levels of deference; there are certain cases in which the CCS has invalidated an act of legislation reflecting the will of the political majority, and in do-ing so gone beyond the ideology of restraint, legalism and grammatical interpretation.78 In a recent systematic study analysing the web page and media presence of the CCS, it was criticized for its pure invisibility and lack of transparency.79
4 . Formal Analysis of the CCS Case Law Regarding the Protection of the Rights of