RETROAKTIVNO VAŽENjE OPŠTE USTAVNE NORME I TUMAČENjE PRAVNIH PRAZNINA: SLUČAJ IZBORNIH ČLANOVA VISOKOG SAVETA SUDSTVA

Abstract

The issue of the retroactive effect of constitutional norms represents one of the most complex questions in constitutional law theory and practice. Although the constitution is the supreme source of law, whose norms by their nature relate to the future (ex nunc), as they regulate relations established by that constitution, certain situations show that provisions of a new or amended constitution can be interpreted to have a retroactive effect (ex tunc). Such an approach, however, calls into question the basic postulates of legal certainty, the rule of law, and the legitimate expectations of legal entities. The paper deals precisely with this phenomenon – the problem of retroactivity of a general constitutional norm and the way legal gaps are interpreted within the constitutional system of the Republic of Serbia, with particular reference to the case of elected members of the High Judicial Council. The author points out the theoretical and practical consequences of retroactive interpretation of the constitutional amendments of 2022, which changed the constitutional status of judicial councils. Special attention is given to the issue of unequal treatment of elected members of the High Judicial Council and the High Prosecutorial Council, resulting from different interpretations of the legal gap regarding the possibility of running for office again. The aim of the paper is to demonstrate that consistent adherence to the principles of legal certainty and equality can be ensured only through the prospective application of constitutional norms and uniform interpretation of ambiguities in favor of all legal subjects.