Initiating the judicial review in the European model of constitutional justice

• Published in: Zbornik radova Pravnog fakulteta u Nišu Vol. 2014; no. 67; pp. 59 - 78
• Main Author: Stojanovic, Dragan
• Format: Journal Article
• Language: English
• Published: Faculty of Law, Niš 2014
• Subjects: abstract normative control; Constitutional Court; ex officio procedure; incidental normative control; initiating proceedings
• ISSN: 0350-8501; 2560-3116
• DOI: 10.5937/zrpfni1467059S

Judicial review is the core competence of the constitutional judicature in Europe, which is largely shaped by the Austrian and German models of constitutional justice. In that context, the issue of initiating the constitutional review of legislation is extremely important. Depending on the subject who is authorized to initiate this proceeding, the constitutional review may be twofold: the abstract control and the incidental control. The former type of constitutional review is generally initiated by political bodies of authority at the national level and regional authorities, as well as the parliamentary minority. On the other hand, the latter type of constitutional review is exclusively initiated by regular courts in the form of judicial motions. In principle, there is a tendency to enable an individual to initiate the process of constitutional review (subject to specific requirements], whereas the ex officio proceeding is typically instituted only for the purpose of resolving a preliminary issue. The constitutional judicature in Serbia recognizes both the abstract and the incidental normative control. The former is effectively implemented in the practice of the Constitutional Court of Serbia; the latter is largely regarded as a theoretical possibility. The specific characteristics underlying the process of initiating a posteriori judicial review imply a significant departure from the standard embodied in the European model of constitutional justice. These characteristics are reflected in the prevalence of abstract constitutional review proceedings which are initiated by citizens as well as in the ex officio proceeding which has been laid down too broadly.