Unnecessary Amendments To The Constitution Of Serbia On The European Path

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