Prof. Marijana Pajvancic, Ph.D., School of Law, University of Novi Sad

The Protection of Civil Rights and Liberties

The basic purpose of the constitution is not to guarantee specified civil rights and liberties, but to provide guarantees for their protection

[1] . It is possible to conclude whether the principle of the rule of law is observed (or not) on the basis of the contents of constitutional guarantees, which ensure the protection of civil rights and liberties

[2] . Civil rights and liberties are guaranteed by the constitution, which has the highest status in a legal hierarchy. The protection of rights and liberties enjoys the same status. The bodies that decide on protection, as well as the relevant procedures and instruments are also regulated by the constitution.

The contents of the protection of freedoms and rights is complex and takes various forms

[3] . A constitutional–law protection of civil rights and liberties includes as follows:

The characteristics and nature of the regulations governing this issue. These regulations have the greatest legal power and include, above all else, the constitution, constitutional laws and laws. Since these regulations are changed according to a special, mostly frequently stricter, procedure, the guarantees of freedoms and rights cannot easily be changed, because the regulations that guarantee them are protected from fast and easy changes.

Defining the content of freedoms and rights in the constitution. Consequently, the constitution represents their basic guarantee and protection. Civil rights and liberties can be regulated by law only under the conditions and to the extent as specified by the constitution.

Laying down the basic constitutional principles, thus establishing the general framework for guaranteeing civil rights and liberties, and determining the extent to which freedoms and rights, as well as any deviation from the general guarantee of a freedom or right [4] (e.g. restrictions, suspension, prohibition of abuses and the like) can be guaranteed.

The system of protection of civil rights and liberties, which is regulated by the constitution itself. The system of protection of civil rights and liberties is complex. It includes the bodies having the competence to decide on the protection of freedoms and rights, basic procedures used by the relevant bodies so as to decide on the protection of freedoms and rights, as well as the instruments and legal remedies that may be used by citizens and other relevant agents so as to protect their rights and freedoms.

Proceeding from the mentioned principles, this paper will be focussed on three issues which, in our opinion, deserve special attention.

The first is of a principled nature, but has quite practical consequences. It concerns the relationship of domestic and international law in the system of human rights, especially in the area of protection of human rights and, in that context, judicial protection of freedoms and rights.

The second concerns a direct constitutional–court protection of rights and freedoms by instituting constitutional appeal proceedings. The underlying reason for devoting special attention to a constitutional appeal lies in the fact that it is not used in the system of protection of freedoms and rights although the constitutional system recognizes it as an instrument of protection.

The third refers to the institutions that are not used in our legal system, but their role in the protection of freedoms and rights is very significant, especially with respect to the protection of citizens before administrative agencies. Since the “encounters” of citizens with the government take place most frequently before administrative agencies, the possibilities for the violation of some of their rights by a government act are the greatest just before those agencies. Therefore, the protection of civil rights before administrative agencies is especially important [5] .

I
THE RELATIONSHIP OF INTERNATIONAL AND DOMESTIC LAW AND THE PROTECTION OF CIVIL RIGHTS AND LIBERTIES

The guaranteeing of civil rights and liberties by the acts of international law has changed the traditional constitutional view that the guarantees of civil rights and liberties come within the sole competence of domestic law. The principle of limited power (i.e. power within the limits of law) has thus obtained a new dimension. Civil rights and liberties limit the government authority both in domestic and international law. The sovereignty of the state is limited by human rights as the universal values accepted by the countries gathered in their global organization (OUN) or in regional associations.

Basic Principles of the Relationship of International and Domestic Law

Following this general tendency, the Constitution of the Federal Republic of Yugoslavia (FRY) laid down the basic principles concerning the relationship of international and domestic law in the area of civil rights and liberties. The general framework for this relationship was established by the following constitutional provisions:

Supremacy of international law over domestic law in the area of civil rights and liberties (Article 10) is the basic principle upon which the relationship of international and domestic law is based.

Supremacy of international law over domestic law is also explicitly confirmed with respect to the rights and freedoms of national minorities as a special group of civil rights and liberties (Article 11).

The state is bound to discharge its obligations arising from international agreements to which the FRY is a party and which are expressly established by a general constitutional rule (Article 16, section 1).

Ratified international agreements form part of the Yugoslav legal system (Article 16, section 2).

Generally accepted rules of international law also form part of the Yugoslav legal system, according to the explicit constitutional provision (Article 16, section 2).

In essence, the general legal framework established by the basic provisions of the FRY Constitution meets the basic standards set in the documents of international law and in comparative constitutional solutions.

The principled stand on the supremacy of international law over domestic law is not defined in the regulatory part of the constitution

The problem arises with respect to the application and concretization of these basic principles laid down in the FRY Constitution, which is evident in a number of areas.

First, the principled stand on the supremacy of international law over domestic law in the area of civil rights and liberties is not followed by the FRY Constitution in its regulatory part . These principles are not concretized and related to the relevant constitutional provisions in the regulatory part of the constitution. A failure to operationalize the mentioned principles is contrary to the readiness expressed in principle to observe the documents and generally accepted rules of international law, as well as to incorporate these rules into domestic law, thus becoming its integral part. This is shown by a number of examples:

The Constitution contains a rule that the freedoms, rights and duties of citizens are spelled out by this Constitution (Article 19), but fails to mention the relevant documents and generally accepted rules of international law.

The Constitution specifies that the freedoms and rights of man and the citizen are realized and duties fulfilled in accordance with the Constitution (Article 67, section 1), but not under the documents and general rules of international law as well.

The Constitution stipulates that the manner of realizing civil rights and liberties can be prescribed only by law and only in such cases and under such conditions as specified by the Constitution (Article 67, section 2). This rules out the possibility of applying the documents and generally accepted rules of international law to these issues.

According to the explicit provision of the FRY Constitution (Article 67, section 4), civil rights and liberties enjoy judicial protection, but not international–law protection as stipulated by the documents of international law.

An exception to this rule is the competence of the Federal Constitutional Court. Namely, in assessing the constitutionality of laws (Article 124, section 1, item 2), the Federal Constitutional Court decides on the “conformity of laws, other regulations and enactments with the Yugoslav Constitution, as well as with ratified and promulgated international agreements”. This competence of the Federal Constitutional Court is an argument in favour of the conclusion that ratified and promulgated international agreements are regarded as part of domestic law and as having a greater legal power than law.

Second, the courts deciding on the protection of civil rights and liberties do not apply the documents of international law in practice . Judicial practice shows that in the Yugoslav legal system there is no awareness of the obligatoriness of international law regulating civil rights and liberties. This happens even after the FRY ratified an agreement, thus expressing its formal willingness to observe the rules of international law, not to mention the cases when generally accepted rules of international law are in question. The reason for such judicial practice should also be sought in the specified provisions in the regulatory part of the Constitution.

Such an example is the provision of the Constitution of the Republic of Serbia which stipulates that courts should administer justice in accordance with the constitution, laws and other enactments (Article 96, section 1), without mentioning international documents in that context. The FRY Constitution has no similar provision.

Third, the group of civil rights and liberties, as well as the contents of specified freedoms and rights guaranteed by the constitution do not conform to the contents of the same rights given in the documents of international law . A comparison of the contents of constitutional guarantees of specified freedoms and rights, especially fundamental ones, shows that the FRY Constitution and, specifically, the Constitution of the Republic of Serbia depart from the standards set in the international human rights documents, ratified by the Federal Republic of Yugoslavia [6] . This is reflected in the lack of some guarantees anticipated by international law, the regime of freedoms and rights in emergency situations [7] , as well as in general formulations of specified freedoms and rights, which do not speak much about their real contents.

The right of access to a court, which is guaranteed by international law [8] , is not explicitly guaranteed by the FRY Constitution as a civil right, despite the principled provision that civil rights and liberties enjoy judicial protection (Article 67, section 4). The Constitution guarantees to everyone “the right to equal protection of his rights based on a legally established procedure” (Article 26, section 1). This rule guarantees equal treatment and the procedure prescribed by law. However, it also permits the interpretation that does not necessarily anticipate the judicial protection of each individual right. Instead, it provides for the protection of rights before other agencies as well. In the opinion of some authors [9] , there are no explicit constitutional guarantees of certain important institutions, which are linked to the right to a fair trial and are regarded as important organizational and process guarantees for the implementation of this right (e.g. the principle of open court, the principle of impartial court [10] and the right to independent judiciary [11] , the right to a natural judge [12] , the right to witnesses of defence, the protection of witnesses, the lack of the process rule forbidding public comments on a trial in progress [13] and the like). The Constitution of the Republic of Serbia provides some of these guarantees such as, for example, the principle of independent judiciary (Article 96, section 1), the principle of open court (Article 97, section 1), which can be excluded only in exceptional cases as prescribed by law (Article 97, section 2), the principle of collective opinion of a court (Article 98, section 1), whereby exceptions are possible only as specified by law (Article 98, section 2).

Fourth, the right of citizens to refer to international institutions concerned with the protection of freedoms and rights is guaranteed only by the Constitution of the Republic of Montenegro (Article 44, section 2), while the FRY Constitution and the Constitution of the Republic of Serbia do not guarantee the right to refer to international institutions for the protection of freedoms and rights. Such a solution gets the Yugoslav citizens into an unequal position, while at the same time showing the unreadiness of the state to observe international obligations and adopt the international standard guaranteeing the right to refer to international institutions for the protection of human rights.

Despite the constitutionally proclaimed principles on the supremacy of international law over domestic law with respect to human rights and their protection, they have not been incorporated into the legal system nor have they been used in practice. According to the principle of the rule of law, these principles should be concretized not only in the regulatory part of the constitution, but also in the overall legal system.

II
THE CONSTITUTIONAL–COURT PROTECTION OF CIVIL RIGHTS AND LIBERTIES – CONSTITUTIONAL APPEAL

The constitutional–court protection of civil rights and liberties consists in decision–making concerning the protection of constitutionality and legality, as well as in a direct protection of civil rights and freedoms guaranteed by the constitution

[14] . Priority in this analysis will be given to a direct constitutional–court protection of civil rights and liberties.

General constitutional–law principles that should be taken into account while considering the competence of the Federal Constitutional Court to protect civil rights and liberties based on a constitutional appeal procedure:

General Principles

The principle of recognizing the freedoms and rights of man and the citizen, which is recognized by international law (Article 10 of the FRY Constitution);

The principle that the freedoms and rights of man and the citizen are limited by equal freedoms and rights of others, as specified by the Constitution (Article 9, section 4, of the FRY Constitution);

The principle that the freedoms, rights and duties of man and the citizen, which ensure their equality, are spelled out by the federal Constitution (Article 19 of the FRY Constitution);

The principle that the freedoms and rights of man and the citizen are realized and duties performed as spelled out by the Constitution (Article 67, section 1, of the FRY Constitution).

Special Rights

The right to equal protection of freedoms and rights (Article 26, section 1, of the FRY Constitution, which anticipates that “everyone shall be entitled to equal protection of his rights in the legally established procedure”).

The right to appeal (Article 26, section 2, of the FRY Constitution: “Everyone shall be guaranteed the right to appeal or other legal redress against the decision concerning his rights or legally based interest”).

The right to judicial protection of civil rights and liberties (Article 67, section 4, of the FRY Constitution, which stipulates that “the freedoms and rights recognized and guaranteed by the present Constitution shall enjoy judicial protection”).

The obligation of government bodies (Federal Constitutional Court) to provide the constitutional–court protection of civil rights and liberties (Article 124, section 1, item 6, of the FRY Constitution, referring to Article 77, section 1, item 1, and Article 128 of the FRY Constitution).

The mentioned principles and special rights and duties establish the basic legal framework for the realization of the right to the protection of civil rights and liberties and a special right to a direct constitutional–law protection of civil rights and liberties based on a constitutional appeal procedure. Consequently, the constitutional system enables a direct constitutional–law protection of civil rights and liberties before the Federal Constitutional Court based on a constitutional appeal procedure. Such a conclusion is based not only on the constitutional rule empowering the Federal Constitutional Court to decide on a constitutional appeal, but also on constitutional rules concerning constitutional guarantees of civil rights and liberties, as well as special rights established by the Constitution, which are linked more directly to the protection of civil rights and liberties.

However, the practice of the Federal Constitutional Court is quite opposite. During the past 8 years, it decided to dismiss more than 100 constitutional appeals. In other words, it did not decide on constitutional appeals in an adequate way, because it dismissed all of them.

Comparing the constitutional rules and hitherto practice of the Federal Constitutional Court, the judge of this court, Mr. Vešović, pointed out rightfully at the Symposium on Constitutional Appeal, held in the Federal Constitutional Court, that such practice “cannot be in the spirit of the Constitution which, not by accident, has the provision on constitutional appeal” and that “an effort must be made not to let the constitutional provision on constitutional appeal, as an instrument for the protection of freedoms and rights of man and the citizen, remain in the proclamation stage”.

Are there the provisions in the FRY Constitution and the Law on the Federal Constitutional Court on which the practice of the Federal Constitutional Court has so far been based, what rules are in question and in what way are they interpreted?

The practice of the Federal Constitutional Court in handling constitutional appeals is based exclusively on the constitutional requirement for the implementation of constitutional appeal (“The Federal Constitutional Court shall decide on a constitutional appeal if no other legal protection is provided” (Article 128). The Federal Constitutional Court did not rely upon other constitutional provisions, those which authorize it to protect civil rights and liberties spelled out by the Constitution (e.g. Article 10, Article 26, Article 67, sections 1 and 4, Article 124, section 1, item 6).

Consequently, the crucial question is how to interpret the contents and extent of the requirements for deciding on a constitutional appeal, which are set forth in Article 128 of the FRY Constitution. Whether this constitutional rule can be interpreted separately from the totality of general principles and special constitutional rights relating to the guarantees and protection of civil rights and liberties?

Since the requirement for the implementation of constitutional appeal was crucial for the hitherto practice of the Federal Constitutional Court, I wish to focus my attention on it and, especially, on the discrepancy of the constitutional rules governing the protection of civil rights and liberties [15] .

First, the basic provisions of the FRY Constitution stipulate that “the Federal Republic of Yugoslavia shall recognize and guarantee the freedoms and rights of man and the citizen which are recognized by international law” (Article 10). Thus, it follows that the FRY accepts the universal right of the citizen to appeal to a court in order to protect his freedoms and rights. This right is explicitly guaranteed by the FRY Constitution, in the chapter devoted to civil rights and liberties.

Second, there is a general rule that the “freedoms and rights recognized and guaranteed by the Constitution shall enjoy judicial protection” (Article 67, section 4). In the chapter devoted to civil rights and liberties, this is a general rule, on which the protection of all civil rights and liberties is based. In a systematic interpretation of the FRY Constitution, it must be taken into account when the overall system of protection of civil rights and liberties is interpreted.

Third, there is a constitutional rule that civil rights and liberties are to be realized directly, in conformity with the Constitution (Article 67, section 1). Thus, it follows that the body which is, under the Constitution, empowered to protect the Constitution from violations, has a special obligation to protect those constitutional provisions which are implemented in conformity with the Constitution itself. This rule also provides a basis for a direct protection of civil rights and liberties by the Federal Constitutional Court.

Fourth, there is a rule according to which the Federal Constitutional Court is competent for deciding on “constitutional appeals for violating the freedoms and rights of man and the citizen, spelled out by the present Constitution, by an individual act or action” (Article 124, section 1, item 6). Consequently, there is a special body, established by the FRY Constitution, which is in charge of decision–making concerning the protection of civil rights and liberties.

Contrary to the mentioned constitutional provisions there is one constitutional provision (Article 128) which links the implementation of constitutional appeal to the fulfilment of one precondition. This is the provision of “other legal protection”, which includes any form of legal protection. Therefore, the interpretation of this constitutional rule excludes the possibility that the Federal Constitutional Court takes action with respect to a constitutional appeal in cases where any form of legal protection is provided.

The terms “other legal protection” (Article 128) and “judicial protection” (Article 67, section 4) have different meanings.

The term “ other legal protection ” is not clear enough and has to be explained in greater detail (e.g. whether this term embraces only the protection provided before government bodies and which government bodies decide on the legal protection of freedoms and rights; whether this term also includes protection before non–governmental bodies, under what conditions and the like).

The term “ judicial protection ” has a clearly defined meaning. That is the protection of civil rights and liberties before courts. Judicial protection of rights and freedoms is anticipated both by international law to which the FRY Constitution refers when civil rights and liberties are in question (Articles 10 and 16), as well as by the FRY Constitution (Article 67, section 4). Finally, this term is also used in the Constitution of the Republic of Montenegro (Article 113) for setting the conditions under which a constitutional appeal can be made.

If the constitutional provisions on the protection of freedoms and rights are related to each other, one may pose the question whether the citizen enjoys judicial protection whenever his freedom or right is violated, as specified by international law and the FRY Constitution, or there are some freedoms and rights which do not enjoy judicial protection, but some other form of legal protection? Also, whether the freedoms and rights, which do not enjoy judicial protection, will also be deprived of protection before the Federal Constitutional Court due to the fact that some form of their legal protection already exists?

An answer to these questions should proceed from the fact that the judicial protection of civil rights and liberties is the fundamental form of protection and that citizens are entitled to the judicial protection of their freedoms and rights. Likewise, one must not lose sight of the fact that if the judicial protection of civil rights and liberties is substituted for some other form of legal protection, the citizen, whose freedom or right has been violated, will not be able to use all available forms of legal protection if judicial protection is provided.

An extensive interpretation of the term “other legal protection”, which actually rules out the possibility of protecting civil rights and liberties in a constitutional appeal procedure, would not be in conformity with the Constitution, because the institution of constitutional appeal is anticipated by it, while decision–making concerning constitutional appeal lies within the competence of the Federal Constitutional Court.

Some cases where the Federal Constitutional Court could decide on the protection of civil rights and liberties in a constitutional appeal procedure.

Evident violations of civil rights and liberties . For the Federal Constitutional Court to be able to act in such cases, it is necessary to set the conditions for its action and, in that sense, to amend the Law on the Federal Constitutional Court. The criteria that might be taken into account in setting these conditions are, for example:

The nature of the freedom or right being violated. Consequently, those could only be the basic or constitutional rights and not legal ones. Those freedoms and rights, with the contents being directly specified by the Constitution, would be protected if their violation is evident. The basis for determining those rights could be found in so–called absolutely protected rights [16] , which cannot be limited even in emergency situations and are enumerated in the FRY Constitution (Article 99, section 1, item 11). In this context, it is also possible to consider the problem concerning an unequal regulatory (legal) and individual protection of civil liberties in relation to such protection of civil rights.

The agents authorized to institute constitutional appeal proceedings in such cases. Since there is no federal agency in charge of human rights and the protection of minorities in the constitutional system any more, the right to institute proceedings should be given to the federal agency having the competence to deal with such issues now. The Federal Constitutional Court should also have a similar right. Otherwise, it has the right to institute proceedings for the assessment of constitutionality on its own initiative. Thus, it would not be contrary to the spirit of the Constitution to authorize the Federal Constitutional Court to initiate proceedings concerning the protection of civil rights and liberties guaranteed by the Constitution as well.

In this regard, it is also necessary to point to the specific contents of some freedoms and rights guaranteed by the constitution, which fall within the group of so–called nonsuable rights. Although these rights are guaranteed, their formulation in the constitution does not provide for their suability, that is, protection (e.g. this group includes the freedoms and rights anticipating the government's obligation to implement a specified programme or policy upon which a certain right or freedom is dependent (e.g. “the family and the mother shall enjoy special protection”, Article 61, section 1, of the Constitution). Such rights should be especially considered so as to determine whether some of them can still be protected by instituting constitutional appeal proceedings.

Violations of civil rights and liberties committed by acts of representative bodies [17] . It is necessary to specify what acts are in question.

Since a constitutional appeal can be instituted only in the event of violation of a right or freedom by individual acts, the latter can be individual acts passed by assemblies. Assemblies pass a great number of such documents when deciding on elections (reliefs of office), which fall within their competence. The freedoms and rights relating to elections enjoy partial protection (e.g. the competence of the Federal Constitutional Court to decide on the violation of rights during federal elections). Such disputes would be settled before the Federal Constitutional Court by referring to its competence to decide on electoral disputes arising from federal elections. However, the question remains as to whether an adequate constitutional–court protection is provided in the event of elections on which other assemblies decide (e.g. assemblies of local communities), because the Constitution of the Republic of Serbia does not anticipate a constitutional appeal. Protection based on a constitutional appeal procedure might also be provided for the violations of freedoms and rights committed during the elections falling within the competence of assemblies.

Constitutional appeal may be used as an instrument for the protection of freedoms and rights against individual acts of an assembly deciding on relief of office, because these individual acts of an assembly cannot be regarded as an electoral dispute, not even when the Federal Constitutional Court is in question, because its competence in electoral disputes is clearly defined and linked only to the “violation of rights during elections”.

Constitutional appeal would be a suitable instrument for the protection of the right to be elected of elected deputies and councillors. This instrument would protect their mandate from violations that might be committed in deciding on the termination of the tenure of a deputy or councillor. Parliamentary practice offers many such examples. The right of deputies or councillors to exercise their right to be elected, should be protected from its violations, which may be committed by the political parties on whose lists the elected deputies or councillors were the candidates. In this case, protection should include both acts on which assemblies decide at a plenary session, as well as acts of their working bodies which, in practice, lay claim to the constitutionally established competence of an assembly to decide on such issues. The protection of these rights is especially significant because, in this way, it is possible to change the will of voters subsequently, thus violating not only the deputies' right to be elected, but also the right to vote of a great number of citizens. Finally, parliamentary practice points to the examples of unequal treatment of equal issues, thus violating the constitutional principle of the equality of citizens as well.

Attention should also be devoted to the protection of the right to be elected of deputies and councillors in cases when the assembly is not in session and does not exercise its competences. If sessions are not held, deputies or councillors cannot realize their right to be elected, as well as a number of other rights arising from it. In this case, the right is violated due to non–performance, that is, omission to perform.

Constitutional appeal may also be used for the protection of the immunity rights of deputies and councillors if these rights are violated in the process of deciding on them. Protection would include both the acts and decisions of an assembly, as well as the acts of its working bodies.

These issues can be specified by the Law on the Federal Constitutional Court.

The above arguments point to a conclusion that the constitutional appeal has its place in the system of protection of civil rights and liberties and that the Federal Constitutional Court has sufficient reason to reconsider its hitherto practice in deciding on constitutional appeals and change it in a positive direction, thus effectively using its constitutional authority to protect civil rights and liberties.

III
ON ONE INSTITUTION OF PROTECTION OF FREEDOMS AND RIGHTS

In the Yugoslav legal system, the protection of civil rights and liberties is provided before administrative agencies in two–instance proceedings: before courts, which is the basic form of protection of freedoms and rights, and before constitutional courts. In domestic law, the administration, courts and constitutional courts are the only government authorities deciding on the protection of freedoms and rights.

The institution of ombudsman [18] , as the protector of civil rights, does not exist in the Yugoslav constitutional and legal system, either at the federal or the republican level. On this occasion, the status, competence and role of the ombudsman in the protection of freedoms and rights will not be discussed in more detail. It will probably suffice to mention the recommendation of this meeting. Namely, it was recommended to adopt this specific institution for the protection of civil rights and liberties in the forthcoming, thoroughgoing reform of the legal system.

[1] For more detail about the legal protection of civil rights and liberties see: M. Pajvančić, “Pravo na zaštitu sloboda i prava građana” (“The Right to the Protection of Civil Rights and Liberties”) in the Collected Papers “Rekonstrukcija pravnog sistema Jugoslavije na osnovama slobode, demokratije, tržišta i socijalne pravde” (“Reconstruction of the Yugoslav Legal System on the Principles of Freedom, Democracy, Market and Social Justice”), Law Faculty, Novi Sad, 2000, pp. 89–97.

[2] For more detail about the status and protection of civil rights and liberties in the Yugoslav constitutional system see: M. Pajvančić, “Zaštita sloboda i prava građana – ustavni koncept” (“The Protection of Civil Rights and Liberties – Constitutional Concept”) in the Collected Papers “Građanin u pravnom sistemu Jugoslavije (“Citizen in the Yugoslav Legal System”), Helsinki Human Rights Committee, Belgrade, 1999, pp. 37–51.

[3] For more detail see: M. Pajvančić, “O jednom obliku ustavne zaštite sloboda i prava građana” (“On One Form of the Constitutional Protection of Civil Rights and Liberties”) in the Collected Papers “Demokratičnost poretka u SRJ – problemi, mogućnosti i pravci unapređivanja” (“Democratic Featres of the System in the FRY – Problems, Possibilities and Lines of Improvement”), Montenegrin Academy of Sciences and Arts, 1996, pp. 39–51.

[4] For more detail see: M. Pajvančić, “O opštim interesima društva kao ustavom utvrđenim činiocima ograničavanja prava garantovanih Ustavom” (“On the Common Interests of Society as the Constitutionally Established Factors Limiting the Rights Guaranteed by the Constitution”) in the Collected Papers, Law Faculty in Novi Sad, XXIII/4, 1989, pp. 119–205; and M. Pajvančić, “Ustavni okviri unutar kojih su zajamčene slobode i prava građana” (“The Constitutional Framework for Guaranteeing Civil Rights and Liberties”), Arhiv za pravne i društvene nauke, No. 2–3/1991, pp. 230–237.

[5] For more detail about the protection of civil rights and liberties before the administration see: M. Pajvančić, “Zaštita građana pred upravom” (“Protection of Citizens Before the Administration”), Collected Papers, “Pravna i politička misao Mihajla Ilića”(“Legal and Political Thought of Mihajlo Ilić”), Law Faculty, Belgrade, 1995, pp. 244–249.

[6] For more detail see: V. Dimitrijević and M. Paunović, “Ljudska prava” (“Human Rights”), Belgrade Human Rights Centre, Belgrade, 1997.

[7] For more detail see: V. Vasilijević, “Ljudska prava u vanrednim prilikama” (“Human Rights in Emergency Situations”), Anali, No. 1–2/1993, pp. 43–58; S. Gajin, “Zaštita ljudskih prava u uslovima vanrednog stanja” (“The Protection of Human Rights in a State of Emergency”), Pravni život, No. 9/1995, pp. 835–851; M. Pajvančić, “Režim sloboda i prava građana u vanrednim prilikama – komparativni pristup” (“The Regime of Civil Rights and Liberties in Emergency Situations – a Comparative Approach”), in the Collected Papers of the Law Faculty, Novi Sad, 1993, pp. 73–79.

[8] For example, the Universal Declaration of Human Rights (1948) states that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charges against him (Article 10). The International Convention on Civil and Political Rights (1966), in Article 14, and the European Convention on Human Rights (1950), in Article 6, guarantee the right to a fair and public hearing within a reasonable time and by an impartial tribunal established by law.

[9] See V. Dimitrijević and M. Paunović, “Ljudska prava” (“Human Rights”), Belgrade Human Rights Centre, Belgrade, 1997, p. 281.

[10] For more detail see: Z. Mršević, “Uloga nezavisnog pravosuđa u zaštiti ljudskih prava” (“The Role of Independent Judiciary in the Protection of Human Rights”), Jugoslovenska revija za međunarodno pravo, No. 2–3/1990, pp. 174–184.

[11] The right to independent judiciary established with a view to “securing legality and substantial human rights... has, over time, become one of the basic human rights”; M. Grubač, “Nezavisno sudstvo i pravna država” (“Independent Judiciary and a Lawful State”), in the Collected Papers “Uspostavljanje moderne demokratske i pravne države u Srbiji” (“The Establishment of a Modern Democratic and Lawful State in Serbia”), Serbian Academy of Sciences and Arts, 1997, pp. 369–377.

[12] This right is guaranteed by the Montreal Declaration (Article 2.43).

[13] As for trials in progress, M. Grubač turns special attention to the comments on such trials in the media and by the bodies of executive power, which is contrary to the principle of judicial independence.

[14] For more detail see V. Đurić, “Ustavna žalba” (“Constitutional Appeal”), Belgrade Human Rights Centre, Belgrade, 2000, and Dr D. Stojanović, “Ustavno sudstvo i zaštita prava i sloboda čoveka i građanina” (“Constitutional Judiciary and the Protection of Rights and Freedoms of Man and the Citizen”), Pravni život, No. 12/1995, p. 185.

[15] For more detail on the violation of the constitution with respect to civil rights and liberties see: M. Pajvančić, “Ogledi o kršenju ustava” (“Essays on the Violation of the Constitution”), in the Collected Papers “Ustavnost i vladavina prava” (“Constitutionality and the Rule of Law”), Centre for the Advancement of Legal Studies, Belgrade, 2000, pp. 255–301.

[16] On war decrees see: K.Cavoški, “Ustavnost i vladavina prava” (“Constitutionality and the Rule of Law”), Collected Papers, Centre for the Advancement of Legal Studies, Belgrade, 2000, p. 301.

[17] For more detail see: Z. Đukić Veljović, “Ustavno–sudska zaštita izbornog prava” (“Constitutional–Court Protection of Electoral Rights”), Pravni život, No. 12/1995, p. 217; S. Bajić, “Izborni sporovi pred ustavnim sudom” (“Electoral Disputes Before the Constitutional Court”), Pravni život, No. 12/1996, p. 351; S. Vučetić, “Lex spetialis kao negacija vladavine prava” (“Lex spetialis as a Negation of the Rule of Law”), Pravni život, No. 12/III, p. 201.

[18] For more detail see the papers presented at the scientific meeting: “Ombudsman – the Protector of Civil Rights”, in the Collected Papers of the Law Faculty in Novi Sad, XXIV, No. 3–4/1990.

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