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Proceedings on a constitutional appeal



The constitutional appeal is a special legal remedy for instituting proceedings before the Constitutional Court for the protection of human and minority rights and freedoms guaranteed by the Constitution. Constitutional appeal proceedings are based on the principle of disposition, which means that it depends on the authorised submitter of the constitutional appeal whether and in respect of what the court will decide.

A constitutional appeal may be filed against individual acts or actions of state bodies or organisations entrusted with public powers, which have violated or withheld human and minority rights and freedoms guaranteed by the Constitution, if other means for their protection have been exhausted or have not been envisaged. In addition, a constitutional appeal may be filed if the legal remedies have not been exhausted in case when the submitter of a constitutional appeal has suffered a violation of the right to a trial within a reasonable time. From the above stated it follows: a) that subject of a constitutional appeal may be individual acts and actions, and only those which originated from a state body (legal, administrative and judicial power bodies), or an organisation entrusted with public powers; b) that the rights protected in proceedings on a constitutional appeal are all those human and minority rights and freedoms, individual and collective, guaranteed by the Constitution  (therefore, not only those which are specified in the chapter with the title „Human and Minority Rights and Freedoms“, but also those rights and freedoms guaranteed by other provisions of the Constitution); and, c) that a constitutional appeal is a subsidiary legal remedy, as it may be used (filed) only based on the constitutionally specified grounds, with said exception in case of a violation of the right to a trial within a reasonable time.

Admissibility conditions (presuppositions) regarding the constitutional appeal. -  For a constitutional appeal to be admissible, i.e. for it to be the subject of  the Constitutional Court's proceedings, it is necessary that certain conditions (presuppositions) are meat. These conditions, on which the admissibility of legal protection, realised through a constitutional appeal in the Constitutional Court's proceedings, depend, are called procedural presuppositions.

The admissibility conditions (presuppositions) for a constitutional appeal are determined in part by the Constitution of the Republic of Serbia, and in part by the Law on the Constitutional Court. According to the Constitution, a constitutional appeal may be filed against individual acts or actions of state bodies or organisations entrusted with public powers, which violate or withhold human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have been exhausted or have not been envisaged. By this also some of the admissibility conditions for the constitutional appeal have been specified: first, the subject of a constitutional appeal (namely,  the subject of a constitutional appeal may be only an individual act or action of a state body or organisation entrusted with public powers); second, the subject of the dispute itself (namely, the subject of the constitutional dispute originating in the constitutional appeal may be only a violation or withholding of constitutionally guaranteed human or minority rights and freedoms); and third, that other legal remedies for the protection of the violated or withheld rights and freedoms have been exhausted or have not been envisaged. The Law on the Constitutional Court specifies also other conditions for admissibility of a constitutional appeal: first, that a constitutional appeal may be filed  also if the right to protection of a violated or withheld right and freedom have been excluded by law; second, that a constitutional appeal may be filed also if legal remedies have not been exhausted, in case when the submitter of a constitutional appeal has suffered a violation of the right to a trial within a reasonable time; third, that a constitutional appeal may be filed by any person (natural or legal) who holds that his constitutionally guaranteed human or minority right and freedom have been violated or withheld by an individual act or action of a state body or organisation entrusted with public powers; fourth,  the deadline in which a constitutional appeal may be filed; fifth,  the content of a constitutional appeal; sixth, formal accuracy of a constitutional appeal (intelligibility, completeness, etc.). There are also other admissibility conditions for a constitutional appeal which have not been explicitly specified, i.e. named by law, but have been subsumed under the general term „other procedural presuppositions“. The following may be included under the so-called other procedural presuppositions: that no other constitutional proceedings are being conducted on the same legal matter between the same parties; and b) the constitutional matter may not be res iudicata.

The right to file a constitutional appeal. – A constitutional appeal may be filed by any (legal or natural) person who holds that their constitutionally guaranteed human or minority right or freedom have been violated by an individual act or action of a state body or organisation entrusted with public powers. Hence, a legal or natural person may file a constitutional appeal only if a violation of their own right is in question, i.e. they have to have a personal and real interest that the disputed act is removed, i.e. that the action or the ordered activity is prevented. The constitutional appeal on behalf of a natural or legal person, based on their own special authorisation in writing, may be filed by another natural person, i.e. state or other competent body in charge of monitoring the implementation and realisation of human and minority rights and freedoms. The absence of a special authorisation for filing a constitutional appeal represents a procedural deficiency which prevents further conduct of proceedings, and results in rejection of the constitutional appeal.

The deadline for filing a constitutional appeal. – A constitutional appeal may be filed within 30 days from the moment the act adopted in respect of the last exhausted legal remedy has been served to the submitter, when constitutional appeals the subject of which are individual acts are in question, i.e. from the date the action has started or has stopped, when constitutional appeals the subject of which actions are in question, with a difference that in the latter case, the deadline is calculated from the date the submitter of the constitutional appeal has become aware that the action has been undertaken or that it has stopped. For a failure to act, the deadline is calculated in every concrete case, depending on the conduct of the bodies involved and the conduct of the submitter of the constitutional appeal. The deadline for filing an appeal is exclusive in character, which means that the result of failure to observe this deadline means losing the right to, subsequently, undertake again the missed action – filing a constitutional appeal. However, if a person misses the deadline for filing a constitutional appeal for a justified reason, reverting to the previous state of affairs is allowed, under the condition: a) that the proposal for reverting to the previous state of affairs is filed within 15 days from the date the reason that caused the failure ceased to exist, and b) that, simultaneously with this proposal, the constitutional appeal is filed. In any case, when three months from the date of failure have expired, it is not possible to request reverting to the previous state of affairs.

The abovementioned refers to the situation when a constitutional appeal is filed subsequent to coming into force of the Law on  the Constitutional Court.

The obligatory content of the constitutional appeal. – A constitutional appeal must meet certain formal conditions in respect of the obligatory elements it must contain. Thus, a constitutional appeal must include name and surname, citizen's unique identification number, place of residence, i.e. the name and seat of the submitter of the constitutional appeal, name and surname of his authorised representative, number and date of the act against which the appeal is filed and the name of the body which framed it, specification of human or minority right or freedom guaranteed by the Constitution which are allegedly violated with the specification of the constitutional provision guaranteeing this right or freedom, the reasons for the appeal and allegation explaining what the violation or withholding consist in, the request the Constitutional Court is to make a decision on, and the signature of the submitter of the constitutional appeal. The constitutional appeal is usually submitted together with a copy of the disputed individual act, proof that the legal remedies have been exhausted, as well as other evidence of significance for decision-making. That the requirements concerning the obligatory elements of the constitutional appeal's content are met is a procedural presupposition which conditions the existence and examination of other procedural presuppositions.  In case of any deficiency of elements the Constitutional Court notifies the submitter of the constitutional appeal and invites him to remove the deficiencies within a specified time-frame, with a warning that in case any element preventing the Court to proceed is missing, the constitutional appeal shall be dismissed.

Deciding on the existence of procedural presuppositions.  – The Court's deciding on the existence of procedural presuppositions implies that the Court does not decide on the subject (content) of the dispute, but on the existence, i.e. absence of procedural presuppositions indispensible for conducting proceedings the aim of which is deciding on the merits of a constitutional appeal. In that case, the Court may: a) discontinue proceedings  in the following cases: 1. if the constitutional appeal has been withdrawn; 2. if the framer of the disputed individual act annuls, cancels or changes this act in accordance with the request contained in the constitutional appeal; or if the action or withholding that caused the violation of the constitutionally guaranteed right or freedom has stopped, with the consent of the submitter of the constitutional appeal; and 3. if other procedural presuppositions for conducting the proceedings cease to exist, and b) dismiss the constitutional appeal in case: 1) when it finds that the Court has no jurisdiction for deciding; 2) if it has not been submitted within the specified time-frame; 3) when within the specified time-frame the submitter has not removed the deficiencies which prevent proceeding of the Court; 4)  when for conducting proceedings and decision-making other presuppositions specified by law are lacking.

Deciding on the subject of a dispute. – The Constitutional Court decides on the merits of a request contained in the constitutional appeal, i.e. lack of it, in a decision by which a constitutional appeal is either upheld or rejected as groundless. Deciding on the subject of a dispute implies deciding on the merits of the constitutional appeal (or whether or not a constitutionally guaranteed right has been violated), wherein the Constitutional Court cannot decide instead of the body whose individual act or action is the subject of proceedings before the Constitutional Court. When deciding, the Constitutional Court is, in respect of finding that a right or freedom has been violated or withheld, „tied“ by the request contained in the constitutional appeal, and moves within its limits when making the decision.

When the Constitutional Court finds that the disputed individual act, or action, a constitutionally guaranteed human or minority right or freedom, has been violated or withheld, it upholds the constitutional appeal in its decision and finds that a constitutionally guaranteed human right or freedom has been violated or withheld, and establishes the manner of just satisfaction. By way of exception, when the Constitutional Court upholds a constitutional appeal and specifies that a human or minority right and freedom, guaranteed by a concrete constitutional provision, has been violated or withheld by the disputed act or action, and that the detrimental consequences may not be rectified in any other way, the Court cancels the individual act, and sends the case to retrial by the same body whose act has been cancelled (in this case the Court may order adoption of a new act or termination of proceedings as soon as possible), i.e., it will prohibit further implementation or order the implementation of a specific action and removal of detrimental consequences within a specified time-frame. When in its decision a constitutional appeal is upheld, the Court establishes whether or not this decision is the grounds for compensation of damage.

Legal nature and legal effect of a Constitutional Court decision. – A decision made upon a constitutional appeal is final, because a dispute resolved by a Constitutional Court decision may not be resolved by the same or other constitutional court, or any other body or organ, neither is there any appeal against a Constitutional Court decision, i.e. it may not be disputed by any other legal remedy, wherein the constitutional appeal which has lead to a meritory resolution of a dispute is considered res iudicata. Also, the Constitutional Court decisions are enforceable, and this characteristic follows from their final and generally-binding nature.

The decision on cancelation of an individual act and prohibition of implementation of an action has constitutive effect. If an individual act is cancelled or implementation of an action is prohibited, its legal consequences are also cancelled, with an effect from the moment a violation or withholding of the constitutionally guaranteed human or minority right or freedom has occurred. A Constitutional Court decision takes effect from the moment it is served to the parties to the proceedings. Although the Constitutional Court decisions, in accordance with the Constitution, are generally-binding, it should be said that in case of the constitutional appeal, they take effect between the parties to the proceedings, but this effect includes also other persons, in case when a constitutionally guaranteed human or minority right or freedom of several persons has been violated or withheld by an individual act or action – and only some of them filed constitutional appeals – then the Constitutional Court decision refers also to the persons who did not file a constitutional appeal, if they find themselves in the same legal situation.

As a rule, the constitutional appeal does not prevent application of the individual act or action against which it has been filed. By way of exception, the Constitutional Court may suspend the enforcement of an individual act or action, under the following conditions: 1) if the submitter of the constitutional appeal requests (proposes) suspension, b) if the enforcement would cause an irreparable damage to the submitter, and c) if suspension is not contrary to public interest, nor would it cause greater damage to a third party. As regards the proposal for suspension of enforcement of an individual act or action against which the constitutional appeal has been filed, the Constitutional Court shall, as a rule, decide within 90 days from the date the proposal has been received. In that case, it is an instructional deadline, and not an exclusive one. 

Compensation of non-pecuniary damage.  – A Constitutional Court decision upholding a constitutional appeal is the legal grounds for filing a claim for compensation of damage or removal of other detrimental consequences before a competent body, in accordance with law. Based on the Constitutional Court decision upholding a constitutional appeal, the submitter of the constitutional appeal may file a claim for compensation of damage with the Commission for Compensation of Damage, for reaching an agreement concerning the amount of compensation. If such a claim is not accepted, or the Commission has not made a decision within 30 days from the date of the submission of the claim, the submitter of the constitutional appeal may file a claim for compensation of damage with the competent court.

 

 


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