On the Margins of Consolidation: The Constitutional Court of Serbia

Papić, Tatjana and Đerić, Vladimir (2018) On the Margins of Consolidation: The Constitutional Court of Serbia. Hague journal on the rule of law, 10 (1). pp. 59-82. ISSN 1876-4045

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Abstract

This article argues that the Constitutional Court of Serbia has only marginal role in political and legal life of the Serbian society and, consequently, very modest impact on the process of democratic transition and consolidation. This conclusion is drawn on the basis of the analysis of the Court’s institutional design, substantive constitutional framework and selected cases that involved thorny constitutional and political issues, as well as issues of the country’s compliance with European standards of parliamentary democracy and human rights protection. The article demonstrates how the Court’s deference to the political majority in power and, in particular, the delaying and avoiding strategies it employs, make it irrelevant in the process of democratic consolidation. Yet, the Court plays a more relevant role in the field of the protection of human rights (constitutional complaints competence). However, these are cases which usually do not involve major political interests, so the Court can rule without constraints, relying on the jurisprudence of the European Court of Human Rights, although not always consistently and aptly. Finally, the article demonstrates that the Court’s legitimacy is weak. In respect to the input legitimacy this is due to the non-transparent process of selection of justices and disregard for the selection criteria. Perceptions of the Court by the general and expert public also reveal that it lacks both sociological and normative legitimacy. Moreover, the output legitimacy is poor, since the effect of the Court’s decisions in the articulation of the dominant political values in Serbian society is close to insignificant.

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