7 October 2021
The aim of the Conference is to investigate the influence of attitudes of the European Court of Human Rights (ECtHR) on the decisions of the Constitutional Court of Serbia (CC) in cases for the protection of human rights guaranteed by the Constitution of Serbia and the European Convention on Human Rights (ECHR). The analysis of selected decisions of the CC from various human rights fields would attempt to confirm the initial presumption (hypothesis) that the Constitutional Court looks up to the ECtHR decisions in terms of both the examination of merits (substance) and the methods used.
This fact from the ECtHR and CC relationship opens some more general and specific questions. Serbia, like other European continental states, falls in the group of countries applying the system of continental law. It had been built upon Roman law, has been created and amended by laws, and is written and codified. However, the CC practice, which manifests itself in the acceptance of the ECtHR attitudes almost by automatism, is not, in fact, a feature of the European continental law but of the Anglo-Saxon legal system. That system is characterised by court-made law (in a concrete case), with judgements representing the precedents (exemplary judgements) for subsequent decision making by other courts. From the analysis of the CC case law on human rights protection, it is not difficult to conclude that for the CC, the ECtHR decisions constitute, to some extent, the precedents – exemplary judgements. It means that the CC’s decision making on human rights protection is close to the system of precedent (Anglo-Saxon) law, which practice diverges from the European legal tradition.
The acceptance of the ECtHR attitudes by the CC does not stem from any legal norm – there is no legal obligation on the CC to accept the ECtHR attitudes on some legal issues; it rather concerns the CC’s opportune behaviour.[1] Although it derives from the norms of the Serbian Constitution that there is no court hierarchically higher than the CC, by accepting the binding nature of the ECHR and the ECtHR jurisdiction, Serbia virtually made the ECtHR superordinate to the CC. It means that upon an application for the protection of a human right guaranteed by the ECHR, the ECtHR can overturn a CC’s decision. The CC has the right to pass the same decision again, but with a real risk of it once again being overturned by the ECtHR. Through its practice in the vast majority of cases, the CC demonstrates that it is not prepared to take that risk.
It stands as a fact that in human rights protection proceedings, the large number of cases with similar factual circumstances affects the CC to follow its previous practice, and if there is none, the case law of the ECtHR. It is precisely the requirement of the constitutional principle of legal certainty. Therefore, if the CC has already decided similar issues, it will invoke its previous decision(s) and concurrently the ECtHR judgements. We assume that the reason for committing to the ECtHR case law is not a dogmatic one, nor is it prevailing as such, but simply a pragmatic, practical one. In a word, if the ECtHR attitude is not applied, the CC decision will be overturned upon the submitted application. And no court, including the CC, wants that.
From this practice of the CC follows a specific question – didn’t the CC, on self-initiative, impose on itself the ECtHR as a higher court in the matter of human rights protection? Did it, by doing so, depart from its constitutionally guaranteed autonomy and independence? If it did, is the sole reason for so the pragmatism that assumes that accepting the ECtHR attitudes excludes the overturning of the CC decisions? Or did the CC accept the “practice of international institutions” as undeniably binding by interpreting the constitutional provisions (Art. 18, para 3 of the Constitution)? Answers to these
questions could be obtained from the conference participants after they analyse the specific CC decisions (case study).
It is only in a small proportion of its decisions that the CC departs from the ECtHR case law and that of its own, by which it has previously been adopting the ECtHR attitudes (e.g. violation of property rights and customs offences). With this background in mind, a question arises of the reasons for such practice – is it a provisional change of a legal opinion, or the CC also applies some other (more political than legal) criteria when it changes its course? This question, too, is open for one of the conference participants, as a developer of case studies of this type, to present his/her conclusion.
Generally, the ambition of the Conference is to analyse the CC practice in human rights protection to arrive at conclusions on the CC-ECtHR relationship in respect of the crucial role (decisive arguments) the ECtHR plays in the CC’s decision making. If the views presented at the Conference match the initial hypothesis (on the adoption of the ECtHR attitudes by the CC by automatism), we hope that a subsequent discussion could also reveal the real reasons, legal or political, for this course by the CC.
Participants:
- Dr Darko Simović, University of criminal investigation and police studies Belgrade, “The practice of the European Court of Human Rights in the constitutional complaint proceedings before the Constitutional Court of Serbia”
- Dr Goran Marković, Faculty of Law University of East Sarajevo, “Influence of the ECtHR on decisions of the Constitutional Court of Serbia on protection of political rights”
- Dr Bojan Tubić, Faculty of Law University of Novi Sad, “Impact of the ECtHR decisions on the jurisprudence of the Constitutional Court of Serbia with the special reference to cases related to the right to a fair trial”
- Dr Nataša Rajić, Faculty of Law University of Novi Sad, “The ECHR in the context of interaction between Constitutional Court of Serbia and judiciary”
- Dr Slobodan Orlović, Faculty of Law University of Novi Sad, “Different practice of Constitutional Court of Serbia in cases of right to protection of property”
Moderator: Slobodan Orlović.
[1] Though, the Constitution does contain the provision that „provisions on human and minority rights shall be interpreted (…) pursuant to valid international human and minority rights standards, as well as the practice of international institutions supervising their implementation“ (Art. 18, para 3), but it is not a limitation that applies directly to the Constitutional Court as „an autonomous and independent public authority that shall protect (…) human and minority rights and freedoms“ (Art. 166, para 1 of the Constitution).
CONCLUSIONS
In a substantial number of cases, the Constitutional Court seeks assistance from the European Court of Human Rights’ viewpoints. This is particularly valid for cases dealing with the right to a fair trial (Article 32 Constitution), the right to equal protection of rights and a legal remedy (Article 36), the right to property (Article 58), the right to prompt review of detention (Article 31) and the right to legal certainty in criminal law (Article 34). After all, these are the rights the Court considers to be most often violated; hence, its procedures are harmonised with the standards and criteria established by the European Court for Human Rights.
Even though the Serbian Constitution contains a comprehensive list of human rights, they are rarely mentioned in petitions to the Court, and for most of them, no violations have been established.
The downside of this is that the Constitutional Court, ‘overshadowed by the practice of the European Court’, does not realise that the Serbian Constitution can impose a higher degree of protection for certain rights than the European Convention. It is well known that the European Convention offers no protection in terms of social rights, as it is regulated by the European Social Charter. The Constitution of Serbia contains extensive guarantees for social rights, although their content is mostly regulated by the law. However, this does not imply that these rights are defined solely by declaration; rather, their legal
formation must be in accordance with the principles of social justice, which is one of the pillars of the Republic of Serbia, amongst others. The European Court for Human Rights’ standpoints and practices should not be used as a ‘screen’ for adopting politically desirable decisions while the Constitution’s provisions are neglected. After all, the European Convention was designed to include universally minimal guarantees, acting as a baseline; however, all states may go beyond what was established by the Convention.
The Constitutional Court should adopt a clearly defined methodological approach in implementing the practices of the ECtHR, especially with respect to the foreseeability and certainty, as well as the way it is implemented in certain situations and contexts. In other words, in addition to the described examples of the proactive and affirmative approach in utilising the practice of the ECtHR, it is not explicitly clear and evident, whether the Court will consult the Strasbourg standards for each new complaint for which there is no precedent in the Constitutional Court’s practice and whether it will find inspiration for its decision in the ECtHR’s practice. It is also unclear what this is based on, as there are cases in which the Constitutional Court cites the practice of the ECtHR, while in other identical cases it does not, or sometimes it cites a reference decision in which the ECtHR’s practice is stated.
In terms of applying international institutions’ interpretation standards and practice, the Constitutional Court remains exclusive to the application of criteria and standpoints developed in the practices of the European Court for Human Rights, not taking into account the considerations of multiple other effective international institutions.
The ECtHR in the Context of Interaction between Constitutional Court and Judiciary in Serbia: There are three primary questions that need to be addressed with regard to this important aspect of the European Convention and its application in the legal system as a whole. Does the Constitutional Court follow the case law of the ECtHR in interpreting constitutional provisions? Should the legal standpoints, expressed in the Constitutional Court decisions, be legally binding on the courts of first instance? Do regular courts respect and follow these interpretations when performing judicial functions in general (and to what extent)?
Constitutional practice has revealed that the relation between the Constitutional Court and the courts of first instance could be described as very complex and sensitive. The Constitutional Court and the Supreme Court of Cassation, as the highest court of first instance, have long had a tense relationship. For that reason, both institutions are required to be more active and cooperative in searching for the ‘common language’ in the domain of constitutional human rights protection.
