The External Influence on Constitutional Identity: Comparing Estonia and Serbia

Abstract

The current chapter addresses constitutional identity in Estonia and Serbia. Our primary focus is the internationalization or the ‘outside influence’ on the legal culture of these two countries during the transition. We analyze the contribution and impact of experts and countries, regions, and international organizations that were invited or came by themselves to give legal advice to legislators during the transition to democracy as well as during the integration into the EU. Estonia regained its independence in 1991 and has been an EU member since 2004. In the 1990s, during the drafting of the Constitution as well as all the other central legal acts (Criminal Code, Civil Code, Administrative Law), legal experts, mainly from Germany, Nordic countries, the US, and the Council of Europe, advised on the draft legislation as well as trained legal professionals. From 1997, the importance of EU law and the opinion of the European Commission and their exports increased. Serbia is, as a candidate country, currently in the EU integration process. In 2006, the Republic of Serbia adopted the Constitution, which introduced Article 1 that defines the state and, for the first time, underlines its “commitment to European principles and values”. In addition, it is currently undergoing constitutional changes and drafted constitutional amendments that are guided by the Venice Commission and the EU Commission. One of the most critical negotiating chapters is Chapter 23 (Judiciary and Fundamental Rights), which is monitored by both bodies and dictates the overall progress of the negotiation process. Overall, the Europeanization process, as part of the internalization of European constitutions, is very dominant.