PRAVNI ZAPISI • Year II • No. 2 • pp. 343-357
INFLUENCE OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ON THE SERBIAN LEGISLATION AND CASE LAW
Prof. dr Dragoljub Popović
Sudija Evropskog suda za ljudska prava
Redovni profesor, Pravni fakultet Univerziteta Union u Beogradu
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Pravni zapisi, No. 2/2011, pp. 343-357
Original Scientific Article
KEY WORDS
European Convention for the Protection of Human Rights and Fundamental Freedoms; European Court of Human Rights; legislation; court practice; unification of court practice; Serbian law; Justice; argumentation; knowledge of rights; judgment
ABSTRACT
The European Court of Human Rights, while applying the European Conventions for the Protection of Human Rights, has created an extensive judicial body of law, which lately has been called the European Human Rights Law. This law is in essence the case law and one can understand it only through the thorough insight into the European Court of Human Rights practice that had developed the text of the Convention. The courts of the Republic of Serbia are obliged to apply norms of the Convention, and one gets the impression that the litigants are invoking the provisions of this international treaty before domestic courts. This Convention influences statutory and case law of the Republic of Serbia. The article gives two examples of the statutory influence, namely, Article 422 of the Code of Civil Procedure and Article 82 of the Law on Constitutional Court. The first of these norms has introduced new grounds for reopening civil proceedings, while the second one has provided for the right to trial within a reasonable time. The remedy granting right to a trial within reasonable time has been widely applied, but not without criticism. The author of the article criticizes the choice for our legislation that had been inspired by the Italian model. This model has not been efficient in the Italian law practice and thus the article recommends that it should be changed. The influence of the Convention on the case law of Serbia is quite interesting to ponder on, although it would require more research. The author analyzes the manner in which attorneys for the litigants invoke the Convention, as well as the court action in complying therewith. The author argues that the Serbian case law requires systematic monitoring, that needs to be further commented on, as done in other countries. A particular impact of the European human rights laws on the Serbian law comes unexpectedly from the European Court of Human Rights that in its judgments, on several occasions, has been able to consolidate the incoherent domestic case law. This practice of the European Court of Human Rights needs to be stopped by introducing a mechanism that will consolidate the case law. Furthermore, the author points out an issue of comprehending the European Human Rights Laws by Serbian courts and suggests a very simple and practical solution.