UDC 342.57(497.11)
Biblid: 1451-3188, 12 (2013)
Vol. 13, No 43-44, pp. 335-360
DOI:

Оriginal article
Received: 01 Jan 1970
Accepted: 01 Jan 1970

O ZAŠTITI OSNOVNIH PRAVA U SRBIJI U SVETLU LOŠE OCENE EVROPSKE KOMISIJE – RAZLOZI NISKOG STEPENA STVARNE ZAŠTITE OSNOVNIH PRAVA U REPUBLICI SRBIJI I NEOPHODNE MERE ZA NjENO POBOLjŠANjE

Breneselović Luka (Институт за упоредно право, Београд), breneselovic@hotmail.com

The issue of fundamental rights in Serbia is particularly sensitive. Speaking with the words of European Commission: “The legal and policy framework for human rights and the protection of minorities in Serbia is, overall, in line with European standards”. However the Commission has also stated that, regarding those rights, the “implementation of the legislation needs to be stepped up”. This problem of an insufficient “implementation” is a fundamental problem of Serbian legal system which overhauls daily politics and political consensus of the ruling parties. It is rather a structural problem which is deeply connected with the transfer culture of the Serbian legal system and society in general. The provisions which provide fundamental rights are neither introduced nor implemented within the broader social framework. In the contrary, the fundamental rights provisions have been transplanted from the foreign legal system without any sense for local, culturally determined tasks and problems, and without a consciousness for the content of introduced guaranties in their original social framework. Therefore there are many fundamental rights (freedom of science, autonomy of universities) which live rather only in books, than in action. Some well-known fundamental principles, as the one of equality, are also not taken seriously. Irresponsibly enough, the equality is introduced only in such aspects, which have been a part of classical discussions and works in the Western societies. On the other side, specific problems of equality in the Serbian society, being not introduced in the Western literature, are overseen or simply ignored. The fundamental guaranties are rather accepted as some uncrackable foreign codes than as vivid concepts which may improve the social welfare and the quality of the personal life.

Keywords: Basic Rights, Human Rights, EU, Stabilisation and Association Process (SAP), Legal Transfer, Legal Culture, Law in Action, Law Implementation, Constitutional Theory, Serbia