Author: Vladana Jarakovic, Legal Expert, CRTA
The Constitution of Serbia prescribes the possibility for one third of MPs to request an assessment of the constitutionality of a law after it has been passed, but before it was promulgated by a presidential decree. In the event that at least a third of the deputies submit a proposal for constitutionality assessment, the Constitutional Court is obliged to decide on the constitutionality of the law in an urgent procedure, within an extremely short timeframe (7 days). The regular procedure, the one that is initiated after a law was promulgated, is not limited in duration.
According to the Law on the Constitutional Court, a proposal for constitutionality evaluation before promulgation must be accompanied by the text of the law that was passed, certified by the General Secretary of the National Assembly (AN. or a person authorized by them).
Opposition MPs informed the public that 84 of them ( AN. more than a third) intend to ask the Constitutional Court for an assessment of the constitutionality of the Law on Amendments to the Law on Planning and Construction, which was voted on Wednesday, July 26, 2023. At 4:30 p.m., and had not yet been promulgated by a presidential decree. They asked the General Secretary of the National Assembly to certify the original of the law. According to their statements, immediately on 26.07. they demanded a certified copy - but during that day they were denied certification, which is a necessary prerequisite for submitting a proposal to the Constitutional Court for constitutionality assessment.
The very next day they were informed that the law had been promulgated. To sum up - the law was forwarded to the President of the Republic for promulgation and was promulgated without the MPs being able to use their constitutional right to initiate the procedure of normative control before the promulgation of the law.
A few logical questions arise.
When does the Speaker of Parliament deliver the approved law to the President of the Republic for promulgation?
The Rules of Procedure of the National Assembly prescribe that the Speaker of Parliament shall immediately, and at the latest within two days from the day of the vote on the law, submit the law to the President of the Republic for promulgation.
It is not known when the Speaker of Parliament sent the Law to the President of the Republic. What is known is that the decree was issued on July 27, which means that there was enough time for the MPs (provided they had in fact received a certified text) to submit a proposal to the Constitutional Court before the promulgation of the law.
Would the president be able to promulgate the law if the MPs had submitted a proposal to the Constitutional Court before the promulgation?
Yes. The Constitutional Court informs the President of the Republic that the procedure for evaluating the constitutionality of the law has been initiated before its promulgation. The President of the Republic, however, may issue a decree to promulgate a law even when the procedure for assessing the constitutionality of the law is in progress before its entry into force. In that case, the procedure continues in accordance with the regular procedure for assessing the constitutionality of the law - meaning it will not be urgent and the decision made by the Constitutional Court becomes effective only after the announcement of the Constitutional Court's decision on unconstitutionality.
Differences between the regular constitutionality assessment procedure and the constitutionality assessment procedure of a law that has been passed but not yet promulgated by decree (urgent procedure)
The procedure for assessing the constitutionality of a law that has been passed but has not yet been
promulgated by decree (urgent procedure)
The procedure is initiated if there is a proposal by at least 25 MPs
|It can be initiated by 1/3 of the MPs|
|There is no time limit for the procedure. In practice, constitutionality assessment procedures last for years||When there is a proposal, the Constitutional Court must go through the procedure in no more than 7 days (the law is not submitted to the National Assembly for comments, nor discussed in a public debate, etc.)|
The decision determining the unconstitutionality has legal effect from the date of publication of that decision in the Official Gazette - potentially, after a few years.
This practically means that the provisions of the law are applied until the publication of the decision of the Constitutional Court that the provision is unconstitutional. After that, those provisions can no longer be applied (not even in ongoing procedures).
With regard to the application that preceded the publication of the decision on unconstitutionality, there is a possibility that those whose rights have been violated by individual acts (verdicts, decisions, etc.) arising from unconstitutional provisions may request the amendment of those acts. This right can be exercised within 6 months from the publication of the decision of the Constitutional Court, and only on the condition that no more than two years have passed since the individual act has been delivered to its recipient to the submission of the proposal for the initiation of the constitutionality assessment procedure.
If it is established that by amending an individual act, the consequences resulting from the application of a general act that was determined by the Constitutional Court to be not harmonized with the Constitution cannot be removed, the Constitutional Court can order that these consequences be removed by returning to the previous state, by damages compensation or in some other way.
The decision determining that the law that has not been promulgated is not in accordance with the Constitution produces legal effect from the day of promulgation of the law (AN. which means that unconstitutional provisions will not enter into force).
If the Constitutional Court had time to make a decision before promulgation and decided that the Law was harmonized with the Constitution, the challenged provisions after the law's entry into force could not be the subject of the constitutionality assessment procedure again. The rest of the law, however, can be subjected to this kind of normative control.