Legal remedies in administrative disputes are a paradoxical area of administrative procedure law. Although essentially inspired by the idea of protecting the rights, freedoms and obligations in ...administrative procedure, inadequate application of these legal remedies may result in a violation or obstruction of the fundamental rights and administrative procedure principles, and insufficient protection in administrative disputes. The paper examines the effectiveness of these remedies and addressed the following question: Can the current system of legal remedies in administrative disputes justify their legal purpose and presence in administrative procedure law? The negative response to this question would be the most reliable call for prospective reform. The administrative dispute goals are important for the legality principle, particularly in terms of the fundamental requirements of the "the rule of law" (as the key postulate of any democratically organized society) and the tendency of intensive and inevitable expansion of administration. The objectives of administrative disputes (administrative law judicial protection) are clearly defined in Article 1 of the Administrative Disputes Act. The Constitution recognizes and insists on the importance of legality of the administrative action, especially in decision-making on the rights, obligations and interests of individuals. Given the indisputable importance of implementing these goals and the relevance of this issue in the midst of extensive reforms of public administration and administrative justice, this paper provides a critical analysis of legal remedies in administrative disputes. Considering their realistic potential, the ultimate goal is to offer de lege ferenda solutions for the regulation of legal remedies in administrative disputes which would eliminate the drawbacks discovered in the research.
The role of mediation as mechanism for the amicable settlement of disputes is growing in the modern legal sector. Mediation is an alternative dispute resolution mechanism in modern law, and the ...Committee of Ministers of the Council of Europe recommended to use it in administrative disputes in 2001*. Mediation as the alternative dispute resolution mechanism is actively applied in civil disputes in Georgian legal sector, although it has not gained popularity in administrative disputes. Overwhelmed courts with administrative disputes and delayed justice once again underscores the need for reform, which may consider development of a new program to establish new mechanisms in administrative disputes and popularize application of new mechanisms. The use of mediation as an alternative dispute resolution mechanism in administrative-legal proceedings may have prospects, given its growing popularity in civil disputes and the methodology for resolving disputes amicably, although this requires judicial/legislative readiness. The goal of the study is to consider the perspective and possibility of using mediation in administrative disputes in order to demonstrate the need to use mediation as a mechanism.
Any person claiming that his or her right has been infringed by the administrative activity of a public authority may bring an administrative action. The general rule in administrative disputes is ...that, in order to be able to bring an action before the court, a person claiming infringement of his right through the administrative activity of a public authority (the plaintiff) must provide proof that the requirements of the law have been met and that the prior procedure has been followed, i.e. he must first apply to the issuing or higher authority and, if the latter refuses, i.e. after the administrative act has been upheld, he may apply directly to the court. Failure to comply with this rule results in the action being declared inadmissible.
Judicial full jurisdiction in administrative dispute does not disturb the principle of separation of powers: its objective is complete, effective, economic, and timely protection of subjective rights ...and interests. Firstly, it goes without saying that administrative jurisdiction is in principle protective-operational mechanism. At the same time public administration should do its job, and in everything legally and properly - not to hide behind the hypothetical complete intervention of the administrative judiciary (both judicial and administrative, in two steps). It is necessary to adopt general catalogue - in the form of legal position of the administrative court - of administrative matters that are exempted from full jurisdiction. Apart this, the Court reserves the right to assess when to engage in full jurisdiction and when not. De lege ferenda, Law on administrative disputes should not refer to the possibility that lex specialis laws exclude full jurisdiction in specific administrative matters. It should be the issue of discretionary powers. It is also legitimate to prevent ping pong in the field of administrative-judicial disputes. De lege ferenda, it would be necessary that after one cancellation of the contested administrative act (the same is the case when establishing that the silence was unfounded) and the non-compliance with that judgement, the court's full jurisdiction would be mandatory, regardless of the nature of the matter, except when there is an administrative discretionary assessment. Summa summarum, in the entire given milieu, the category of "nature of the things" is redundant, i.e. it represents unclear limiting factor of full jurisdiction.
A decade ago, Serbia has carried out the reform of judicial control of public administration - by establishing the new Administrative Court. The expected results, however, have not been achieved and ...the problems that caused the reform have not been resolved. Therefore, a decade later, a new reform is in sight. The planned changes include establishing more administrative courts and introducing a two-instance administrative dispute. The aim of this paper is to discuss these changes, but in a slightly different way. Instead of their uncritical acceptance and justification by European legal standards, they are analysed having in mind the legal nature of the administrative dispute. Successful administrative dispute reform cannot be achieved if European legal standards are blindly accepted and copied literally from classical court proceedings. Only the legal nature of the administrative dispute and the features that make it special and different from the usual court disputes can lead us to a successful implementation of the changes.
Full text
Available for:
IZUM, KILJ, NUK, PILJ, PNG, PRFLJ, SAZU, UL, UM, UPUK
The need to introduce the institution of mediation in the domestic legal system is based on the positive results of the practical application of the institution of reconciliation in many countries ...around the world, which indicates its effectiveness. The use of an alternative, non-judicial way of resolving disputes, particularly, mediation, will provide an opportunity to solve the problem of court congestion.
The article is devoted to the research of the introduction of the practice of settling administrative disputes through the mediation procedure in Ukraine.
The problematic issues that need to be regulated in the legislation have been identified, that are principles and procedure for conducting mediation: from its initiation to the moment of termination; the legal status of the mediator, particularly, the conditions for acquiring the status of a mediator, the content of his rights and obligations, liability for violation of the law on mediation, as well as the categories of disputes in which it can be used.
The feature of administrative proceedings is that one of the parties in the dispute is the subject of power. Thus, the feature of alternative dispute resolution, in particular mediation, in administrative proceedings is the peaceful settlement of relations between a state agency, on the one hand, and with a natural or legal person, on the other. There are several possibilities for legalization of the status of a mediator: the first is the implementation of mediation by professional independent mediators (for example, members of a professional association of mediators); the second is judicial mediation: or the settlement of a dispute with the participation of a judge. The issues of determining the categories of cases in which mediation can be used, in particular administrative disputes, remain unresolved. Resolving these issues will help expand the practice of mediation in the settlement of administrative disputes.
Disputes arising from the execution of administrative contracts constitute a continuous challenge to the social actors involved. The Republic of Moldova could take advantage of Romanian legislation ...if it started from the assumption that the theories and principles that govern administrative contracts in Romania are valid for it. In the case of Romania, the reconsideration of art. 8 para. (2) of the Administrative Litigation Law no. 554/2004 which requires a legislative intervention in order to cancel the negative consequences for the private entrepreneur, part of an administrative contract, as a result of the procedural defect of not invoking, ex officio, by the court, at the first term, of functional material competence. After such an approach, the legislature of the Republic of Moldova could also be inspired, and could improve and harmonize the provisions of the Administrative Litigation Law no. 793 of 10.02.2000 and the Administrative Code no. 116/2018. Anyway, in The Republic of Moldova, by virtue of its status as a candidate country for the EU, many legislative harmonizations will take place, and Romania’s experience would help.
Zakon o općem upravnom postupku sadržava više odredaba na temelju kojih se, u slučaju izvanrednih situacija, u konkretnim predmetima može odstupiti od redovitih postupovnih pravila. Tiču se ...neposrednog rješavanja upravne stvari, usmenog rješenja (uz moguće hitno izvršenje), isključenja odgodnog učinka žalbe, određivanja privremenog zastupnika stranke, vremena dostave akta i poduzimanja radnji bez obzira na mjesnu nadležnost. Po prirodi stvari, pretpostavke za primjenu tih odredaba propisane su općenito, a uglavnom rezultiraju donošenjem oneroznih upravnih akata. Premda Zakon o upravnim sporovima nema takve odredbe, postoje instituti uređeni tim Zakonom koji su u većoj mjeri povezani s rješavanjem predmeta u izvanrednim situacijama. Spomenuta opća pravila hrvatskoga upravnog postupka i upravnog spora predviđena za izvanredne situacije u radu su analizirana i sistematizirana, uz prateće interpretacije i pojmovna razgraničenja.
The General Administrative Procedure Act contains several provisions on the basis of which, in case of emergency, regular procedural rules may be deviated from in specific cases. They concern the direct deciding, oral decision (with possible urgent enforcement), exclusion of the suspensive effect of the appeal, appointment of a temporary representative of the party, time of service (delivery) of the act, and taking procedural action regardless of local jurisdiction. By the nature of things, the preconditions for the application of these provisions are prescribed in general, and mainly result in the adoption of onerous administrative acts. Although the Act on Administrative Disputes does not contain such provisions, there are institutes regulated by this Act that are more related to resolving cases in emergency situations. In this paper the mentioned general rules of the Croatian administrative procedure and administrative dispute envisaged for emergencies are analyzed and systematized, with corresponding interpretations and conceptual distinctions.
The interest in administrative justice has been growing in many countries recently. At the core of an accountable and transparent administration is the right to effectively challenge acts and ...decisions that affect civil rights and obligations, and so also the daily life of individuals. Effective means of redress against administrative decisions require a functioning system of administrative justice that provides fair trial guarantees. Administrative justice is not limited to the guarantee of citizens’ rights. Its justification also lies in the necessity to defend the public interest and to guarantee a balance between individual rights and the public interest. An administrative-court proceeding should be public, held within a reasonable time, undertaken by an independent and impartial tribunal established by law, and result in an enforceable judgment that shall be pronounced publicly. In addition to interpreting the rights, the Strasbourg Court has pointed out that it must be borne in mind that the European Convention on Human Rights (ECHR) is intended to guarantee rights that are practical and effective. This paper will analyze the certain provisions of the European Convention on Human Rights regarding mainly with the right to a fair trial and the right to an effective remedy and will try to give a concise retrospective to some of the most interesting cases of administrative nature decided by the European Court of Human Rights. Further, it will emphasize the framework of the Council of Europe of existing and applicable recommendations in the area of administrative law starting with alternative ways of resolution of administrative disputes and giving closure with execution of administrative and judicial decisions.
The paper analyses the issue of judicial review in personal data protection proceedings. The subject of analyses is a procedural safeguard and other peculiarities of the administrative dispute and ...the standard of administrative law protection in the mentioned proceedings and the role of the Court of BiH. A comparative legal analysis of administrative-legal protection in the same disputes within Croatia and Slovenia is conducted, together with the relevant legal framework of the European Union. The comparative legal analysis aims to determine the extent to which the domestic model of administrative-legal protection and legal standards of judicial protection is compatible with the solutions adopted across Europe. It draws attention to problematic and controversial solutions to domestic legislation. In conclusion, the authors propose several regulatory solutions which would bring improvements to the current system of judicial protection in domestic law.
PDF
