One of the rare occasions when the Constitutional Court addresses the public is when a new president of the Court is chosen. This opportunity, however, was not used to inform the public whether there are any other changes, ideas, problems, or news in the Court. And I don’t mean formal or protocol ones, but primarily those concerning the basic role of the Court and its problems with jurisdiction, promptness, agility or passivity, performance or criteria for decision making. For example, the Court didn’t respond to the recently published extensive, analytical, and critically oriented CEPRIS study on its work and relationship with the judiciary. And the problems are many.
Although the Court itself is one of the authorized proposers for the review of constitutionality and legality, it didn’t use this right. As professor Violeta Besirevic noticed, the Court chose to remain a silent observer of the daily collapse of the legislative procedure. And not only that! It ignored the rights of pensioners, the Brussels Agreement, the implementation of two laws on rehabilitation, and without valid legal support, it attacked the Statute of Vojvodina and refused to ban certain political organizations.
The most important mission of the Constitutional Court is completely overshadowed by the other affairs that take up almost all of the Court’s time. Instead of assessing constitutionality and legality, and implementing activities aimed at protecting democracy, the constitutional principles of which are increasingly being trampled on, almost all of the work of the Court is devoted to resolving constitutional complaints. Their share in the total number of cases in 2018 has climbed to as much as 97.8%! In that year alone, 25,600 complaints were received, out of which, in addition to the 17,888 unresolved and carried over from previous years, another 15,545 new cases were formed. Most of them are aimed at challenging final court judgments.
The question is whether this most frequent activity of the Constitutional Court is in accordance with the Constitution. The constitution stipulates that a court decision can only be reviewed by a competent court. The Constitutional Court is not a part of the judiciary, so it certainly does not constitute such a “competent court”. Despite this, the Court derives the power to review and annul court decisions from the law and not from the Constitution. The observation and attempt to rectify this paradox is evidenced by the fact that, even in the drafting of constitutional amendments, the one dealing with the right to review judicial decisions stipulates: “… and the Constitutional Court in the process of constitutional appeal.” This form of external control of the courts has been active for about a decade, and is now extremely relevant after the state secretary of the Ministry of Justice suggested – perhaps just as an obscure thought, perhaps as a trial provocation – that judges and prosecutors should be chosen by the President.
Although it persistently denies that it is an instance court in relation to the courts of general and special jurisdiction, the Constitutional Court, by virtue of the aforementioned powers, actually has this role. This wouldn’t be a problem if the Court confined itself to making only declaratory decisions. But in 2012, the Court managed to place itself above the judiciary and to acquire the right to overturn court decisions.
The value of the criteria for resolving constitutional complaints is particularly questionable. Although, in its own opinion, the Court does not generally have jurisdiction to verify the facts and the manner in which the regular courts have interpreted the regulations, it nevertheless addresses these issues when the application of the law and the quality of the conclusions in the decisions of the regular courts are prima facie arbitrary. Of course, it would be absurd for only prima facie excesses to be privileged, and all others that require greater attention or knowledge of law to be classified as tolerable and acceptable! With this interpretation, the Court underestimated not only constitutional rights and freedoms, but also its own role, reducing it to the narrow reaches of sensus communis, which Vico classified as conclusions reached without any thought. The criteria are so vague and open that they can serve as cover for completely different decisions in the same or similar matters.
With these and other contradictions and shortcomings, our Constitutional Court increasingly resembles the Royal Council of 18th-century France, which Tocqueville said could not be seen from the glare of the throne to which it was close and which acted in such a deep shadow that history has hardly noticed it. There is a serious danger that the Constitutional Court, if still operating out of the shadow, or in the shadow of the domestic “throne”, which directly or indirectly chooses 2/3 of its members, will remain only a shadow of a court.
Translated by Marijana Simic