THE CONSTITUTIONAL COURT OF SERBIA AND THE FRENCH CONSTITUTIONAL COUNCIL AIMING FOR THE “MODEL OF EUROPEAN CONSTITUTIONAL JUSTICE”

Abstract

The study of the legal systems in time and space, that is the comparative law, allows the reduction of legal differences consecutive to the temporary or contingent circumstances. However, the differences between the legal systems does not exclude a permanent tendency in the unification of the law, in particular when it’s a question of the guarantee of the State under the Rule of law and the correspondence to the requirements put by European laws and community.

The introduction of the European constitutional justice appears as a result of a slow evolution of the ideas and the concept of democracy. Hans Kelsen's constitutional positivism dedicates, from the theory of the gradual construction of Law, the requirement of control of constitutionality, exercised by a unique Jurisdiction, to guarantee the principle of hierarchy in the standards and coherence of the legal order.

The categories which qualify the French constitutional Council and the Serbian constitutional Court must be envisaged as an "ideal". So, the concept of the European constitutional Justice model does not dismiss a normative concept of substantive law, but a descriptive notion which recovers from the analysis compared by the institutional systems.

Given that the European model of constitutional Justice is characterised, first of all, by the exercise of a concerted control, entrusted to a specific constitutional Jurisdiction, having a monopoly of interpretation of the Constitution; and that it plans the intervention of a control by action, started by public or political authorities, returned decision benefiting from the authority absolved from Res judicata. The study which follows brings us to assert that the French constitutional Council and the Serbian constitutional Court are comparable towards the European model of constitutional justice.