ANNULMENT OF THE COURT DECISIONS ON THE BASIS OF A CONSTITUTIONAL COMPLAINT IN THE REPUBLIC OF SERBIA

Bojana Babić

Abstract

Conflict and confrontation between Constitutional Court and Supreme Court of Cassation have been subject matter of scholar research since Constitution of the Republic of Serbia introduced constitutional complaint in 2006. The author analyses the nature of the connection between the constitutional complaint and authority of the Constitutional Court to annul the court decisions on one side and impacts thereof on the relation between two “supreme” courts in Serbia on the other. Thesis is that setting aside judicial decision implies hostility between Constitutional Court and Supreme Court of Cassation. Supreme Court of Cassation is arguing that Constitutional Court is acting as the “fourth instance”. Having in mind lack of explicit definition for the term “specific constitutional law” and competence of the Constitutional Court, there are no firm limits of power when Constitutional court is deciding. Thus, reasoning for competence of Constitutional Court to set aside decision of court might seem relatively unjustified and produces conflict with Supreme Court of Cassation. In this article the author
gives definition of “specific constitutional law”, argues the limits of competence and concludes that there is no breach of ne bis in idem principle, that case law of Constitutional Court should be respected and that overall result of the conflict is beneficial for harmonization of interpretation of the “specific constitutional law”.

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