Constitutional review and the authorities of the Constitutional Court: The Constitution of Serbia 2006

The constitutional court has a very important role in the protection of constitutional democracy. Whereas the constitution provides a normative framework for the operation of the constitutional system, the constitutional court has an active role in achieving and implementing the principles of constitutional democracy. The constitutional court performs this function in collaboration with all participants in the legal and political system. Although the constitutional review in Serbia did exist in the period of the socialist constitutionality, as well as in the first Serbian Constitution (1990), the new Serbian Constitution of 2006 provides a wider legal framework for the operation of the constitutional court. This paper is structured in two parts. In the first part, the author observes the position of the constitutional court as a safeguard of the constitution, including its modus operandi in a contemporary constitutional democracy. In the second part, the author analyses the powers of the Constitutional Court of Serbia within the legal framework provided by the new Serbian Constitution, primarily including the authority to rule on constitutionality and legality in abstracto but also regarding the new authorities of the Constitutional Court to decide on constitutional complaints submitted by citizens and review the legal grounds for establishing the accountability of the head of state. Expanding the scope of authorities of the Constitutional Court should enable that this body of authority attain the position of a genuine safeguard of the Constitution in the young Serbian democracy. The basic authority of the Constitutional Court in respect of providing an abstract control of constitutionality and legality has been expanded in compliance with the hierarchy of legal acts in the legal system of the Republic of Serbia, as envisaged in the Constitution. The universally accepted international law rules and the ratified international agreements are part of the unified legal order; in the hierarchy of legal acts, they come immediately after the Constitution. The presumed function of the Constitutional Court and a full exercise of its constitutional authorities may be developed only if the Constitutional Court decisions are observed and implemented. However, the problem of implementing the constitutional court decisions remains open because it does not depend merely on the statutory regulation on the execution of these decisions. As the Serbian constitutional system operates on a generalized legal formulation without specifying a competent body of authority, the observance and the implementation the constitutional court decisions will greatly depend on the political awareness of the relevance and significance of constitutional judicial control in preserving the constitutional democracy. The parliamentary and governmental decisions are subject to a special regime of legal protection, and the citizens are obliged to observe them. However, the situation is quite different with the Constitutional Court decisions. Despite the fact that a constitutional court decision has an erga omnes effect, it is primarily aimed at the authorities in power. In turn, the authorities may pass a new act of parliament or some other normative act contrary to the constitutional court decision and, thus, diminish the significance of the constitutional court control, which has already happened in the domestic legal system.