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Unconstitutional Provision of the Law on Misdemeanours on the Deadline for Submitting Requests for Retrial

Unconstitutional Provision of the Law on Misdemeanours on the Deadline for Submitting Requests for Retrial

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On 7 April 2022, the Constitutional Court of the Republic of Serbia published on its website a statement that, at the 5th session of this court, held on the aforesaid date, among other matters, it has determined that the provision of Article 281, paragraph 3. of the Law on Misdemeanours (Off. Gazette of RS no. 65/2013, 13/2016, 98/2016 – the CC decision, 91/2019 and 91/2019 – other law) (“the Law”) is not in accordance with the Constitution and ratified international treaty.

Unconstitutional provision

The provisions of Article 281, paragraphs 1. and 2. of the Law, which govern submission of a request for reopening of the procedure, as an extraordinary legal remedy in misdemeanour proceeding, stipulate that the subject request may be filed by convicted person, as well as – in its favour – by persons stated in the provision of Article 259, paragraph 3. of the Law (its spouse, blood relative, brother, sister, legal representative, adoptive parent, adoptee, foster parent, or a person with whom it lives in an extramarital union or another permanent community). The request concerned may be submitted within 60 days from the day when the party learned of the existence of facts and circumstances which, pursuant to the provisions of Article 280, paragraph 1. items 1-6) of the Law, represent grounds for reopening of the procedure.

Pursuant to the provision that has been declared unconstitutional by the respective decision of the Constitutional Court, which is included in the said Article 281, paragraph 3. of the subject regulation, the request for reopening of the procedure cannot be submitted after the expiration of two years from the day when the decision with respect to which the subject request is filed became final.

Publication of the decision

According to the statement, the Constitutional Court postponed the publication of the said decision in the Official Gazette of the Republic of Serbia for six months from the day of its adoption.

Unconstitutionality of general acts

As a reminder, in accordance with provisions of articles 50-65 of the Law on the Constitutional Court (Off. Gazette of the RS No. 109/2007, 99/2011, 18/2013 – decision US, 103/2015 and 40/2015 – other law), one of the competencies of the Constitutional Court is a conducting of the procedure for review of constitutionality and legality of general acts (so-called normative control), i.e., deciding on the aforesaid.

This is a subsequent control of the constitutionality of a law, i.e., constitutionality and legality of other regulations and general legal acts, whereby, in accordance with the provisions of Article 66 of the said law, the Constitutional Court may assess the constitutionality of a law even before its promulgation.

When the Constitutional Court finds that a law, statute of an autonomous province or local self-government unit, other general act or collective agreement is not in accordance with the Constitution, generally accepted rules of international law and ratified international treaty, such law, statute, other general act, or collective agreement ceases to be valid on the day the decision of the Constitutional Court is published in the Official Gazette of the Republic of Serbia.

This article is to be considered as exclusively informative, with no intention to provide legal advice. If you should need additional information, please contact us directly.

By Lara Maksimovic, Senior Associate, and Danica Nikitovic, Junior Associate, PR Legal

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