© Springer-Verlag Berlin Heidelberg 2015Siniša Rodin and Tamara Perišin (eds.)Judicial Application of International Law in Southeast Europe10.1007/978-3-662-46384-0_12
Judicial Application of International Law in Serbia
Faculty of Law, University of Belgrade, Belgrade, Serbia
1 An Overview of Constitutional Provisions Related to the Status of International and EU Law
1.1 International Law in the Hierarchy of Legal Sources in Serbia
In the Constitution of the Republic of Serbia, international relations are regulated in Article 16. According to the Serbian Constitution, foreign policy rests on generally recognised principles and rules of international law. Ratified international treaties, as well as generally recognised principles and rules of international law, form an integral part of the legal order of the Republic of Serbia and are directly applicable.1 In order to be a part of the legal order, a ratified international agreement must be in accordance with the Constitution of the Republic of Serbia.2 The Constitution also stipulates the hierarchy of domestic and international general legal acts. Emphasising the unity of the Serbian legal order, Article 194 also regulates that the Constitution is the supreme legal act. To this effect, all laws and other general legal acts promulgated in the Republic of Serbia must comply with the Constitution and may not contradict ratified international treaties and generally recognised rules of international law. We may conclude that ratified international treaties and generally accepted rules have precedence in relation to domestic legislation, and only the Constitution stands above them in terms of hierarchy.
In accordance with the Constitution of the Republic of Serbia, human and minority rights guaranteed by the Constitution are directly applicable.3 A special law may prescribe a method of exercising these rights only if it is explicitly stipulated by the Constitution or if it is necessary to exercise a specific right. If this is the case, the special law may not influence the substance of the relevant guaranteed right. Provisions on human and minority rights are to be interpreted in favour of the improvement of democratic values, pursuant to existing international standards on human and minority rights, as well as the practice of international institutions supervising their implementation.4 In Sect. 4, we will analyse how the meaning of ‘existing international standards’ and ‘the practice of international institutions’ is understood in the Serbian legal system and jurisprudence.
1.2 The Position of the Stabilisation and Association Agreement and the Interim Agreement on Trade and Trade-Related Matters
The Stabilisation and Association Agreement between the European Communities and their Member States and the Republic of Serbia (SAA) is an international treaty signed on 29 April 2008. It was ratified by the European Parliament on 19 January 2011 and by some EU Member States, but has not yet come into force. The SAA shall enter into force after the Parties have notified each other that the approval procedures have been completed. Nevertheless, the SAA has an influence on the Serbian legal system.
The SAA foresees the commitment of the Republic of Serbia to harmonising domestic legislation with the acquis communautaire within the agreed schedule. As the Parties recognised the importance of the approximation of Serbian legislation to that of the Community and of its effective implementation, Serbia should not only endeavour to ensure that existing and future legislation is compatible with the acquis communautaire, but also proper implementation and enforcement of existing and future legislation.5 The process of harmonisation was due to begin on the date of the signing of the SAA.6
The question that remains open is: what does the obligation to ensure ‘that existing and future legislation will be properly implemented and enforced’ mean? In the process of harmonisation, domestic legislation can be approximated to international conventions by enacting amendments to legislation. In certain cases, given the complexity and importance of addressing a certain issue, specific areas are regulated by special laws. Under the Rules of Procedure of the National Assembly, a proposer of a bill should attach a Statement of Compliance of the Bill with the acquis communautaire, including a Table of Compliance of the Bill with EU regulations.7 In some cases, the proposer may attach a statement confirming that there is no obligation for such compliance and must emphasise the impossibility of harmonisation of the bill with EU regulations. A more complex question is whether existing and future legislation is being properly enforced. In comparative theory, we find two basic approaches to this issue. One group of authors considers that, according to the SAA, domestic legislation should be interpreted in the context of EU law. Addressing the identical issue in respect of Croatia, Siniša Rodin provides three arguments for this point of view: firstly, because the Croatian Constitution, in its basic preferences, accepts a monistic view of the relationship between national and international law, and a fortiori between national and EU law; secondly, because the SAA stipulates the obligation to harmonise Croatian and EU law, whereby existing law must be interpreted in accordance with the principle of favor conventionis; and thirdly, because such interpretations, implying the Croatian public interest, are expressed in resolutions of the legislative and executive branches of government, as well as by having submitted the application for full membership of the European Union.8 The second group of authors argues that the duty to interpret existing and future rights becomes effective only after the SAA enters into force. In this sense, Maja Stanivuković believes that the absence of a procedural and institutional mechanism for the proper interpretation of the law in ‘the spirit of EU law’ may lead to irregular practice by domestic courts. She further argues that the existing law does not contain the prerequisites for judges to be informed that a norm of domestic law originates from EU law.9
1.3 The Position of the Interim Agreement on Trade and Trade-Related Matters
When compared to the SAA, the Interim Agreement on Trade and Trade-related Matters between the European Community and the Republic of Serbia (IAT) has a different position. The Interim Agreement on Trade and Trade-related Matters came into force on 1 February 2010. The most important difference between the SAA and IAT is that the rules and interpretative instruments stipulated by the IAT are equal to the rules and instruments adopted by Community institutions. They must be enforced. An illustrative example is Article 38 of the IAT. Article 38(1) stipulates the activities that are incompatible with the proper functioning of the IAT insofar as they may affect trade between the Community and Serbia. Incompatible activities include agreements between undertakings, decisions by associations of undertakings and concerted practices between undertakings if those activities affect the prevention, restriction or distortion of competition. The abuse of a dominant position by one or more undertakings or a distortion or a threat of distortion of competition by any State aid are also incompatible with the proper functioning of the IAT.
Any practice contrary to this Article shall be assessed on the basis of criteria arising from the application of the competition rules applicable in the Community, in particular from Articles 81, 82, 86 and 87 of the Treaty establishing the European Community and interpretative instruments adopted by the Community institutions.10
This means that national courts have an obligation to enforce and interpret competition rules as they are enforced and interpreted by Community institutions. In addition, it means that national courts and the Commission for Protection of Competition11 should directly apply interpretative instruments adopted by the Community institutions. In order to ensure full implementation of Article 38, the Commission for Protection of Competition applies criteria resulting from the application of competition rules applicable in the EU, ‘which includes primary and secondary EU legislation, the practice of EU institutions, and the judgments of the Court of Justice and the Court of General Jurisdiction’.12
An analysis of legal texts reveals examples of direct transposition of EU law into national laws. The Customs Tariff Act in Article 3a(1) defines the classification of goods by virtue of the Customs Tariff.13 In this regard, the Customs Tariff consists of the tariff position for goods, determined in accordance with the Customs Tariff Act and provisions laid down on the basis of this law. The application of the Commission regulations which are concerned with the classification of goods and published in the Official Journal of the European Union is obligatory.14
2 The Judicial System in Serbia
The basic elements of the judicial system in Serbia are established by the Constitution and the Organisation of Courts Act.15 Judicial authority on the territory of the Republic of Serbia is unified and belongs to courts with general and special jurisdiction.16 The specific forms of the organisation, jurisdiction and structure of courts are defined by law. The Organisation of Courts Act established the following courts of general jurisdiction: basic, high and appellate courts and the Supreme Court of Cassation,17 and the following courts of specialised jurisdiction: the Administrative Court, misdemeanour courts, the High Misdemeanour Court, commercial courts and the Commercial Appellate Court.
Basic courts are established for the territory of a town, while higher courts are established for the territory of one or several basic courts. A comparison of the competences indicates that the Appellate Court is the immediately higher instance court for higher courts and basic courts. The Commercial Appellate Court is the immediately higher instance court for commercial courts, and the Higher Misdemeanour Court is the immediately higher instance court for misdemeanour courts. The Supreme Court of Cassation is the court of the highest instance. It is the immediately higher instance court for the Commercial Appellate Court, the Higher Misdemeanour Court, the Administrative Court and the Appellate Court.18
The Constitutional Court is established by the Serbian Constitution to protect constitutionality, legality, and human and minority rights and freedoms as an independent body.19 Any legal or natural person has the right to institute proceedings for a review of constitutionality or assessment of legality. In addition, any person who believes that his or her human or minority rights and freedoms, as stipulated by the Constitution, have been violated or denied as a result of an action or act of the state authorities or an organisation with public authority may lodge a Constitutional appeal with this court.20
3 The Authority to Apply International and EU Law
The possible application of international and EU law raises many questions. Can courts in Serbia directly apply the generally accepted rules of international law and how should this concept be understood? Can courts in Serbia directly apply human and minority rights guaranteed by generally accepted rules of international law? Is there a duty for courts in Serbia to interpret provisions on human and minority rights in accordance with the practice of an international institution? Can courts in Serbia apply EU law directly? Can courts in Serbia refer to the legal principles applicable in the EU? Are courts in Serbia obliged to apply the law of the EU Court of Justice? The answers to these questions are presented below under three sub-headings: general principles of international law, international treaties and human rights treaties.
3.1 General Principles of International Law
Generally accepted rules of international law and recognised international treaties are an integral part of the legal system in accordance with the Constitution of the Republic of Serbia. Constitutional decisions stipulate that court decisions have to be based not only on the Constitution and the law, but also ratified international treaties and regulations passed on the basis of the law.21 The question that arises is whether court decisions should be based on generally accepted rules of international law. In a decision of July 2009, the Constitutional Court indicated that generally accepted rules are an integral part of the Serbian legal order. Moreover, the Constitutional Court explained what should be regarded as generally accepted rules of international law: a source that either contains the rules of behaviour regarding subjects of international law which have emerged as an international custom and relate to the constant and uniform practice of countries in relation to general values (such as the absolute protection of one’s bodily integrity, and the prohibition of genocide, slavery and racial discrimination), or a source that contains principles that should be applied if there are no detailed rules or if other standards should be interpreted on the basis of it. These rules are derived from the principles common to all or most modern democratic legal systems. In the human rights domain, the application of these principles is of particular importance due to the need to explain standards and terms included in the norms of international law without specific definitions.22
Therefore, it may be concluded that the courts in Serbia interpret the Constitution in such a way that an obligation for them to apply generally accepted rules of international law exists.
3.2 International Treaties
Ratified international treaties, as an integral part of the legal system in Serbia, can be directly applied by the courts. A special procedure is followed for the ratification of an international treaty. The National Assembly adopts, by a majority vote of all deputies, laws which regulate the ratification of international treaties.23 After this, the President of the Republic of Serbia promulgates the laws in accordance with the Constitution.24 The law on a ratified international treaty should be published in the Official Gazette of the Republic of Serbia.
The Convention on the Elimination of All Forms of Racial Discrimination (the Ratification of the Convention Act was published in the Official Gazette of SFRY-International Treaties, No. 6/67) obliges all Member States to use all appropriate means and implement, without delay, a policy that aims at eliminating all forms of discrimination and promoting understanding between races and, to that end, by all appropriate means, prohibit racial discrimination by any person, group or organisation (Article 2, item d)), and establishes that States Parties must condemn all propaganda and organisations which are guided by ideas or theories based on the superiority of one race or group of persons of one colour or ethnic origin, or who want to justify or support any form of racial hatred or discrimination, and undertake to adopt immediate and positive measures that aim to eradicate all incitement to such discrimination, or any act of discrimination, … and to declare that participation in such organisations or activities is an offence punishable by law (Article 4, paragraph 1, item b)). The prohibition of incitement to national, racial or religious hatred encompassing calls to discrimination, hostility or violence, or the prohibition of all forms of discrimination, are contained in the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms, which, as ratified international treaties, also form a part of the legal order of the Republic of Serbia.25
Does that mean that Serbian courts can directly apply any ratified international treaty? The Constitution of the Republic of Serbia does not stipulate any requirement that could be compared with the ‘self-executing provisions’ of an international agreement in public international law26 or the concept of ‘direct effect’ of a provision developed by the EU Court of Justice.27 Without it, the application of a ratified international treaty relies on its direct applicability. This could lead to a situation where national provisions are insufficient. When it comes to implementation of an international treaty by means of ratification, it is important to focus not only on the formal transposition, but also on the institutional capacity for identifying and applying certain standards.
3.3 Human Rights Treaties
The Constitution of the Republic of Serbia provides for the direct implementation of human and minority rights. In other words, human and minority rights, guaranteed by the generally accepted rules of international law, ratified international treaties and laws, should be directly implemented.28 Contrary to the implementation of other international treaties, when it comes to the direct implementation of human and minority rights, the Constitution stipulates that the manner of exercising these rights may be prescribed by law if such prescription is necessary for the exercise of a specific right. It can also be stipulated by the Constitution. The law prescribing the manner of exercising human and minority rights guaranteed by the Constitution may not influence the substance of guaranteed rights.
The courts are obliged to interpret provisions on human and minority rights for ‘the benefit of promoting values of a democratic society, pursuant to valid international standards in human and minority rights, as well as the practice of international institutions which supervise their implementation’.29 The meaning of ‘the practice of international institutions’ is not further elaborated. The examples that follow will indicate its meaning in the practice of the Constitutional Court of the Republic of Serbia. It is also evident from the presented examples that the Constitutional Court of Serbia relies on the interpretation of the European Convention for the Protection of Human Rights by the ECtHR much more than on any other international instrument, i.e. than on any other international organisation’s interpretation.
In the case law of the Constitutional Court, we find the following explanation which points to the role of the case law of international courts in interpreting the provisions of the Serbian Constitution relating to human rights protection:
Since on 8 November 2006 the new Constitution of the Republic of Serbia entered into force, in the course of proceedings before the Constitutional Court, the sponsor amended a proposal on 24 February 2009 for assessing the constitutionality of the challenged provisions of Article 4 paragraph 1 of the Family Act. The proposed amendment states that the disputed provision was not in accordance with Article 21 of the Constitution of the Republic of Serbia of 2006, and also that, according to Article 18 paragraph 4-3 of the Constitution, the practice of international organisations must be followed in interpreting the provisions of the Constitution relating to the protection of human rights, and in assessing the constitutionality of the disputed provisions of the Constitutional Court, so that proper account should be taken of the law of the European Court of Human Rights (ECtHR), in particular the judgment in the case of Karner v. Austria (Application no. 40016/98, judgment of 24 July 2003), where the European Court found that unmarried partners of the same sex cannot be denied the rights provided for unmarried different-sex partners, as well as the practice of the Human Rights Committee of the United Nations.30
An illustrative example can be found in the reasoning of the Constitutional Court in a decision of 2009:
In the case of the applicant’s statement that the provision of Article 28 of the Act is contrary to certain statements of the Committee on Freedom of Association of the International Labour Office, and to the practice of certain international institutions that oversee the implementation of conventions and recommendations of the International Labour Organisation, the Constitutional Court has concluded that these attitudes and practices of international institutions are not formal sources of law, i.e. are not considered confirmed international agreements, in terms of Article 167 of the Constitution, and therefore there is no constitutional basis to form a consent assessment of the disputed provision of the Act on their basis. However, the Constitutional Court took into consideration that various international instruments, resolutions, recommendations, views of international organisations, charters, and other instruments that are adopted by individual authorities of universal or regional organisations include rules that may be of importance for the protection of human rights. Therefore, the Constitutional Court considered the provisions of the instruments identified in the initiatives, but did not find them to contain special rules different from the provisions of the Constitution in respect to which the Court evaluated the challenged provisions of the Act.31
The following example demonstrates the meaning of various international instruments in the practice of the Constitutional Court:
The Constitutional Court considered that the various international instruments (resolutions, recommendations, charters, etc.) adopted by some organs of universal or regional organisations, include rules that may be important for the protection of human rights. Those are not international agreements in the true sense of the word, and therefore are not subject to ratification, but their moral and political value is significant. Therefore, the Member States and international organisations recognise and respect them without any legal obligation to do so. For these reasons, the Constitutional Court considered the provisions of these instruments indicated by applicants, but has not found any special or specific rules different from the provisions of the Constitution in respect of which the disputed norms of the Judges Act have been previously evaluated.32
The reasoning of the decision of the Constitutional Court in the 2009 case provides the following opinion:
In assessing claims and making decisions in this constitutional case, the Constitutional Court took into account the jurisprudence of the European Court of Human Rights in Strasbourg … The constitutional evaluation of conducted proceedings in this legal matter, based on the practice and criteria of international institutions for the protection of human rights, confirms that, in this particular case, the right of the complainant to a trial within a reasonable time has not been infringed.33