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The influence of attitude of the ECtHR on the practice of the Constitutional Court of Serbia (and CC in the region) in the matter of human rights – a critical analysis through case studies

2021.10.07. @ 14:00 - 15:10

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, imposed 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 large number of cases, the Constitutional Court looks for support and refers to the standpoints of the European Court of Human Rights. This is particularly valid for cases dealing with the Right to a fair trial (Article 32 Constitution), Right to equal protection of rights and legal remedy (Article 36), right to property (Article 58), right to prompt review of detention (Article 31), right to legal certainty in criminal law (Article 34). After all, these are the rights which are most often deemed violated by the Court, hence its practices are harmonized with the standards and criteria established by the European Court for Human Rights.

Even though the Constitution of Serbia contains an extensive catalogue of human rights, they are not seen often in the petitions filed with 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 realize that the Constitution of Serbia can impose a higher degree of protection of certain rights than is the case with the European Convention. Namely, it is well known that no protection is offered by the European Convention in terms of social rights, as they are regulated by the European Social Charter. Whereas the Constitution of Serbia contains extensive guarantees for social rights, although their content is for the most part regulated by the law. That, however, does not mean that these rights are defined by only pure declaration, but 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 standpoints and practices of the European Court for Human Rights should not be used as a “screen” for adopting politically desirable decisions, whilst the provisions of the Constitution are neglected. After all, the European Convention was conceived in such a way that it contains universally minimal guarantees, acting as a baseline, however, all states may go further and more on what was established by the Convention. 

It is desirable for the Constitutional Court to establish 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 concrete cases and context. In other words, in addition to the described examples of the proactive and affirmative approach in utilizing the practice of the ECtHR, it is not explicitly clear and evident, whether for each new complaint for which there is no precedent in the practice of the Constitutional Court, the Court will consult with the Strasbourg standards and whether it will find inspiration for its decision in the practice of the ECtHR. It is also not clear what this is dependent on, seeing as there are cases in which the Constitutional Court cites the practice of the ECtHR, whilst in other identical cases it does not, or sometimes it cites a reference decision in which the practice of the ECtHR is presented.

In relation to the application of interpretation standards and practice of the international institutions, the Constitutional Court remains exclusive to the application of criteria and standpoints developed in the practice of the European Court for Human Rights, not taking into consideration 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 main questions that deserve to be discussed with regards to this important dimension of the European Convention and its application in the legal system as a whole. Does the Constitutional Court follow the caselaw of the European Court of Human Rights (ECtHR) in the interpretations of constitutional provisions? Should the legal standpoints, expressed in the Constitutional Court’s decisions be legally binding for the courts of regular instance? Do (and to what extent) the regular courts respect and follow these interpretations in exercising the judicial function in general?

Constitutional practice has shown that the relation between the Constitutional Court and the courts of regular instance could be described as very complex and sensitive. There has always been a certain sort of tension between the Constitutional Court and the Supreme Court of Cassation, as the highest court of regular instance. For that reason, both institutions are required to be more active and cooperative in searching for the “common language” in the area of constitutional protection of human rights. 

 

 

 

The video of the event can be viewed below

Details

Date:
2021.10.07.
Time:
14:00 - 15:10

Venue

Webinar Conference