On 5 November 2024, the European Court of Human Rights (“ECtHR“) issued a judgment in the joint case of Stefanović and Banković v. Serbia. The case joined two separate applications filed in April 2016, concerning the same issue. Namely, in both cases the Constitutional Court had quashed final and binding civil court judgments upon constitutional appeals filed by the losing parties, without notifying the winning parties either of the constitutional appeals or of the outcome of the proceedings.
The winning parties filed the applications with the ECtHR, stating that they were not able to effectively participate in the proceedings before the Constitutional Court, although they were interested in the outcome of those proceedings. They alleged that this constituted a violation of the right to a fair trial from Article 6 paragraph 1 of the European Convention on Human Rights, which in the relevant part reads:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The Government of Serbia counterargued that constitutional appeal proceedings are single-party proceedings and that Serbian law does not require communication of constitutional appeals to interested parties and the Constitutional Court does not have such practice.
In a rather brief reasoning, the ECtHR referred to the principle of adversariness as set out in 2009 in Gaspari v. Slovenia. In that decision, the ECtHR held that “the concept of a fair hearing implies the right to adversarial proceedings”, meaning that “the parties must have the opportunity not only to have made known any evidence needed for their claims to succeed, but also to have knowledge of, and comment on, all evidence adduced or observations filed, with a view to influencing the court’s decision”, and that this “may apply also to the submissions filed in proceedings before the Constitutional Court”.
On this basis, the ECtHR concluded that because the Constitutional Court of Serbia did not inform the winning parties of the constitutional appeals filed by the losing parties, the winning parties “were not provided with an opportunity to participate effectively in the proceedings before the Constitutional Court”, and held that this amounts to a violation of Article 6 paragraph 1 of the European Convention on Human Rights. The fact that there was no local law or practice requiring communication of constitutional appeals to interested parties did not affect this conclusion.
A broader effect of this decision is that the Constitutional Court of Serbia will have to adjust its constitutional appeal proceedings to the requirements of the principle of adversariness, at least where such proceedings involve an interested party, other than the applicant and the state body whose act or action is challenged.
This can be achieved without the need to amend the Constitutional Court Act. Even though this legislation restricts the party status in constitutional appeal proceedings to the applicant and the state entity whose act or action is being challenged, it also provides that “other persons invited by the Constitutional Court can also take part in the proceedings before the Constitutional Court”. However, the current Rules of Procedure of the Constitutional Court, which provide only the possibility of notification of the constitutional appeal to the state entity whose act/action is being challenged, may have to be changed to prescribe mandatory communication of the constitutional appeal to other interested parties, such as the winning party in the challenged litigation.
