Serbia: Strategic litigation on the rights of the child in Serbia

Abstract

Serbia belongs to the civil law system, namely, its legal system does not recognize judgments of domestic courts as sources of law and does not treat them as precedents. Still, there are some avenues that can be used for strategic litigation, such as, for example, administrative decisions and recommendations of the National Human Rights Institutions. This article presents, describes and analyzes challenges and opportunities for the strategic litigation for the rights of the child in Serbia. It also presents some administrative decisions and judgments that were used to initiate social changes. The article deals with the legal understanding of the rights of the child in Serbia: it provides analysis of the main characteristics of the legal system, including analysis of the civil, criminal, administrative, constitutional protection mechanisms and their procedural tools. The authors underline the role of the National Human Rights Institutions and civil society as potential champions for the strategic litigation in Serbia. Special attention was given to the actions related to the rights of the child, questions such as who can have a stand before the court and the role of judges and judgments in the law and public policy creation. Case studies present administrative decisions and judgments of the courts in Serbia. The article offers recommendations for changes of law and in particular the procedural rules, which will create an enabling environment for the use of litigation as a tool for advancement of the rights of the child.