Constitutional court as an authority for dispute resolution
| Autor | Konstantin A. Polovchenko - Leonid P. Arak |
| Cargo | MGIMO University, Moscow - MGIMO University, Moscow |
| Páginas | 407-430 |
Periódico do Núcleo de Estudos e Pesquisas sobre Gênero e Direito
Centro de Ciências Jurídicas - Universidade Federal da Paraíba
V. 9 - Nº 02 - Ano 2020
ISSN | 2179-7137 | http://periodicos.ufpb.br/ojs2/index.php/ged/index
407
CONSTITUTIONAL COURT AS AN AUTHORITY
FOR DISPUTE RESOLUTION
Konstantin A. Polovchenko1
Leonid P. Arak2
Abstract: The article presents an
analysis of the powers of the Republic of
Serbia Constitutional Court to resolve
competency and electoral disputes. The
leading method in this study is the
system analysis, which allows a
comprehensive review of the system of
measures and procedures aimed at
implementing the dispute resolution
function of the constitutional justice
body of Serbia. Analyzing the evolution
of the organizational process and the
expansion of the practice of Serbian
Constitutional Court, the author
concluded that the modern constitutional
legislation of the Republic of Serbia
provided the judicial constitutional
control body with sufficiently effective
capabilities to resolve a wide range of
legal disputes to protect the principles of
the rule of law, constitutionality,
legitimacy, and separation of powers, as
1 MGIMO University, Moscow. E-mail: kpolovchenko@gmail.com.
2 MGIMO University, Moscow. E-mail: science@inno.mgimo.ru.
3
2003:14.
well as rights to regional autonomy and
local governance.
Keywords: Constitutional control,
constitutionality, legitimacy, dispute on
competence, electoral disputes,
constitutional proceedings.
1. Introduction
The European-type concept of
constitutional justice has encountered
nearly a hundred years of experience; it
underwent several stages of reform
during this period. However, to date, the
implementation of the dispute resolution
function is considered one of the most
important areas of its activity. 3 That
doesn't happen by accident, the fact is
that modern socio-political life is
characterized by an abundance of
conflicts related both to the process of
forming the highest bodies of state power
Periódico do Núcleo de Estudos e Pesquisas sobre Gênero e Direito
Centro de Ciências Jurídicas - Universidade Federal da Paraíba
V. 9 - Nº 02 - Ano 2020
ISSN | 2179-7137 | http://periodicos.ufpb.br/ojs2/index.php/ged/index
408
and to the delimitation of the competence
of state bodies and other entities that
exercise power. Besides, it is practically
impossible to make such a detailed
differentiation of the competence of state
authorities to explicitly exclude
periodically arising disputes on
competence. Thus, the causes of disputes
over competence in the activities of state
bodies may vary. However, their
solution lies in the plane of activity of a
neutral body that is outside the
traditional system of separation of
powers, and which can consider a
political conflict of competencies in the
legal framework based on specially
established legal procedures. That is why
the constitutional courts of several
European countries have the status of the
fourth judicial control authority in the
state,4 designed to balance the other
three, ensuring the protection of basic
constitutional values; the power to
resolve disputes on competence is the
most often used authority (after
compliance assessment) by the body of
constitutional supervision.
4 See: Leibo, Yu. Constitutional control in
foreign countries: collective monograph /
[Yu.I. Leibo et al]; Eds. E.Y. Pavlov, E.
Kremyanskaya (In Russ.): Moscow:
MGIMO, 2015: 246.
Another important
manifestation of the implementation of
the dispute resolution function by
modern constitutional courts is the
review of electoral disputes. Indeed, the
existence of an institution of
representative democracy is the most
important sign of a modern state, which
claims to be democratic. Therefore, it is
difficult to imagine a modern state
without a developed electoral system
that ensures the participation of citizens
in the exercise of power. Moreover, the
level of democracy of the governmental
system depends on its ability to reflect
the will of citizens, implemented through
suffrage. That is why the latter is
guaranteed by the constitution as a basic
political right, becoming an object of
special protection from the constitutional
justice bodies. This refers not only to the
protection of suffrage and the resolution,
respectively, of political disputes arising
in the process of forming the highest
state bodies, through the offices of the
special powers of the constitutional
courts to resolve electoral disputes. 5
5 See: Tumanov V.A., Polovchenko K.A.
Constitutional Bases of Judicial Power.
Constitutional Law of Foreign Countries:
Textbook (In Russ.) // Ed. by M.V. Baglai,
Ju.I. Lejbo, L.M. Jentin. Moscow, INFRA-
M, 2016:334.
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