School of Intercultural Education, Human Rights and Peaceful Resolution of Conflicts

The seventh lecture within the project realized with the assistance of OSCE and
in cooperation with the Faculty of Philosophy, Novi Sad University

November 5, 2011

"EU Human Rights Standards and their Application in Serbia's Constitutional System"
(Lecturer: Prof. Marijana Pajvancic)

There are three systems of human rights in modern times:

1. Global system - the legislation adoped by the international community (these acts include optional protocols for the implementation of global system, which actually regulate the procedure for the protection of human rights). Human rights collide to a certain extent in some conventions such as the Covenant on Civil and Political Rights and the Declaration on Economic, Social and Cultural Rights. These discrepancies reflect the conflict between liberalism and socialism.

2. Region system - international standards are adjusted to regional needs in detail (e.g. African Convention).

3. National systems - states incorporate international legislation into their legal systems. This can be done in three ways: 1. All-inclusively - through an integrative clause by which international standards have priority over domestic legislation; 2. Courts of law may directly invoke the international law; 3. A state itself incorporates an international standard into its national judiciary (verdicts invoking some international standard are few in Serbia).

From the aspect of the international law the protection of human rights is controlled in two ways:

1. The international community supervises the implementation of human rights standards; a state submits reports to international organizations, plus shadow reports by non-governmental organizations);

2. Individuals who have exhausted all national legal means have the right to appeal to international laws;

Serbia's legal system is chaotic vis-a-vis international covenants. There are no clear-cut criteria for incorporation of international acts into domestic legislation. Serbia's Constitution does not provide that rulings shall be based on the Universal Declaration on Human Rights and courts of law decide solely on the grounds of domestic laws and the Contitution. The application of international documents dealing with the judiciary is undefined.

Some questions and comments by students:

1. Some words do not have grammatical gender. What's the purpose of gender sensitivity in a language?

2. Is it possible for Serbia to ever pass a law on homosexual marriage?

"Mechanisms for the Protection of Human Rights" (Lecturer: Ombudsman Sasa Jankovic)

The first Ombudsman office was established in 1809 in Sweden, which already had a written constitution and a parliament at the time and acknowledged the concept of human rights. Nevertheless, the Swedes wanted to have an outstanding authority in legal sciences other than the King to take care of the respect for human rights. Generally, ombudspersons can issue warnings and recommendations but are not entitled to press charges or take other legal actions. But the first Ombudsperson in Sweden back in 1809 had the authority hardly any of today's ombudspersons across the world has. Today, Swedish Ombudsperson acts as a special prosecutor for judges and controls Swedish judiciary. Finland got its first Ombudsperson hundred years later.

After WWII states became primary service providers to citizens, which in itself reduced the scope of human rights. In the search for a solution to the problem someone remembered the institution of Ombudsperson. Nowadays more countries worldwide have such an institution instead of a constitutional court. There are three models of the Ombudsperson institution:

1. Danish model - a conventional model whereby the Ombudsperson controls the administration and has limited authority (many countries have adopted this model);

2. Human rights Ombudsperson - an Ombudsperson is invested with more authority than just the control over the administration;

3. The rule of law model - guaranteed human rights are above any arbitrariness by a state;

Position and role of Ombudspersons differ from state to state. In some countries Ombudspersons act on citizens' behalf before courts of law, in others a government is duty-bound to the Ombudsperson's recommendations.

Serbia's Ombudsperson has intervened in 6.500 cases up to now. The feedback from governmental institutions in 2011 was positive in 600 cases. The progress made since the first control visit by the Ombudsperson - when he was turned back - is to be ascribed to strong support to his office by the general public, civil society and the media.

Some questions and comments by students:

1. What about blank resignations women had to sign upon recruitment? Who's responsible for this?

2. Does the Ombudsperson issue recommendations only?

3. What is the hookup between the Ombudsperson and the government?