Unnecessary Amendments To The Constitution Of Serbia On The European Path
Presented by: Prof. Dr. Petrov
Date: April 01, 2025
The Ambivalent Political Position Of Serbia From The Beginning Of The 21st Century
And The Procedural Legitimation Deficit Of The 2006 Constitution
- The Constitution of Serbia was adopted on November 8, 2006 ("Official Gazette of RS"
98/2006). It reflects the ambivalence of the position of a country on the path to political
democratization, far from a candidate for EU membership, which was left behind by
one of its constituent parts Montenegro and with the extremely uncertain fate of another
part of its territory - Kosovo and Metohija.
- That position of the Republic of Serbia was first expressed in the procedure of adopting
the new Constitution. .,... This procedure was motivated by important political
considerations and reflected specific difficulties in the country. Nevertheless, it raises
questions of the legitimacy of the text with respect to the general public." (VC Opinion
on the Constitution* of Serbia, CDL-AD (2007)004).
Article 1 Of The Constitution – „European Principles And Values" As A Broad
Constitutional Basis For Serbia In EU
- Already in Article 1 of the Constitution, in the constitutional definition of Serbia, the
framer of the constitution refers to "European principles and values". There is no doubt
that this formulation is flexible enough to include the principles and values of
Community law. So, legally and substantially Serbia is bound to respect European
values and principles and make them integral part of its own constitutional identity.
- Art. 1. of the Constitution of Serbia, by its vagueness, or more precisely by its
flexibility, in the part that refers to European principles and values, ensured its survival
and use value in the Constitution and when, that is, if Serbia becomes a member of the
EU.
„European" Amendments To The Constitution
- What Has Been Done So Far?
• After the adoption of the act on the amendment of the Constitution in the
National Assembly on November 30, 2021, a referendum followed on January
16, 2022, and the declaration of a practically "new Constitution in the field of
the judiciary" on February 9, 2022.
See. V. Petrov „Judicial Reform in Serbia in Light of "the Venetian
Concept" of the Rule of Law", Central European Journal of Comparative
Law, Volume IV, 2023, 2, pp. 233-257.
- What Must Be Done?
• The lack of integration clause
There is still no need to insert an integrative clause into the Constitution.
It will be a necessary but last change to the Constitution when and if
Serbia joins the EU.
• Constitutional judiciary the next step in amending the Constitution on the
European path
Reform of the constitutional judiciary under Chapter 23: Judiciary and
Fundamental rights, and especially in the part related to the quality of
justice, is one of the constitutional imperatives from the point of view of
the European Commission. In last European Progress Report for Serbia
it is said: „No steps were taken to reform the Constitutional Court. In
particular, to introduce qualified majority with a deadlock mechanism
for the election of some of the judges by Parliament, as underlined by
the Venice Commission."
In this regard the Venice Commission in its Opinion from 2021 (Opinion
on the Draft constitutional amendments on the Judiciary and the Draft
constitutional law for the implementation of the constitutional
amendments, CDL-AD(2021)032) stated the following: .... With regard
to those members of the Constitutional Court who are appointed by the
National Assembly, it is regrettable that this opportunity for
constitutional revision has not been seized to introduce: (a) the need for
a qualified majority vote in the National Assembly, and (b) an adequate
anti-deadlock mechanism. The Venice Commission has previously
indicated that a qualified majority should be required in all rounds of
voting. Similarly, the Venice Commission has repeatedly stressed the
importance of providing for anti-deadlock mechanisms in order to
ensure the functioning of state institutions."
- What Should Be Done?
• Removing party imperative mandate - Article. 102. Paragraph. 2.
Article. 102. Paragraph 2 of the Constitution reads: „Under the terms
stipulated by the Law, a deputy shall be free to irrevocably put his/her
term of office at disposal to the political party upon which proposal he
or she has been elected a deputy."
.....Despite long-standing criticism, the 2006 Constitution of Serbia
maintains the provisions related to the imperative mandate Paragraph 2
of Article 102 of the 2006 Constitution of the Republic of Serbia
provides that "a deputy shall be free to irrevocably put his/her term of
office at disposal to the political party upon which proposal he or she
has been elected a deputy". The Venice Commission and ODIHR
reiterate the necessity to revoke the provision from the Constitution, to
eliminate elements fundamentally at odds with the international
standards for democratic elections." (VC, OSCE/ODIHR Joint Opinion
on the Constitutional and Legal Framework Governing the Functioning
of Democratic Institutions from 2022 (CDL-AD(2022)046).
• Easier to amend the Constitution?
Article 203, paragraph 7 of the Constitution reads: „The National
Assembly shall be obliged to put forward the act on amending the
Constitution in the republic referendum to have it endorsed, in cases
when the amendment of the Constitution pertains to the preamble of the
Constitution, principles of the Constitution, human and minority rights
and freedoms, the system of authority, proclamation the state of war and
emergency, derogation from human and minority rights in the state of
emergency or war or the proceedings of amending the Constitution." It
appears that 2/3 of the constitutional provisions would have to go to a
referendum, which significantly complicates, and in some parts may
even make impossible, any change to the Constitution on the way to EU
membership, but also after that. The drafter of the Constitution should
have kept the revision procedure within the framework of the Assembly,
and the real measure is the required two-thirds majority for the adoption
of the act on the amendment of the Constitution.
• The rest...
Disputed and subject to review, for example: provisions on the
relationship between national and "international" sources of law
insufficiently clear hierarchy of norms (Art. 16. International Relations
and Art. 194. „Hierarchy of Domestic and International General Legal
Acts"); provisions on the system of government that enable the
credentialization of power, those concerning the election, powers and
responsibilities of the President of the Republic (art. 111-121), and
among them especially Art. 115. Incompatibility of positions", etc.
Last But Not Least - Kosovo Or „Mission (Im)Possible"?
- Two scenarios:
• Kosovo would be an entity with practically all the elements of statehood, more
precisely, a 'state' that has internal supremacy, but not its complete external
appearance international legal subjectivity or at least not international legal
subjectivity in its full capacity Objectively, too late for that.
• Constitutionalizing the Brussels Agreement from 2013 and the Brussels-Ohrid
Agreement from 2023. This would certainly require a thorough revision of the
Constitution uncertainty regarding the final result of such an action, because the
question arises as to what would really be left for Serbia; insisting on highest
institutional guarantees of the autonomous rights of the Serbs in Kosovo
