The Constitutional Court of Serbia declared Article 178(3) of the General Administra-tive Procedure Act (GAPA) unconstitutional. This provision sets an objective deadline for reopening of the ...administrative procedure. The Constitutional Court found that this deadline is unconstitutional when the procedure is reopened as a result of the Constitutional Court decision on constitutional appeal or the ECtHR judgment determining that a decision rendered in an administrative proceeding violated a right guaranteed by the Constitution or the European Convention on Human Rights (ECHR). Unfortunately, the said GAPA provision prescribed an objective deadline for other 10 reasons for reopening of the procedure. By declaring this provision unconstitutional, the Constitutional Court stepped out of its role of the 'negative legislator' and made a legislative choice instead of the legislator, by removing par-ts of the norm that are not inconsistent with the Constitution. When making this decision, the Constitutional Court relied on its previous decisions, which removed the same provisions on the objective deadline for reopening of the civil litigation and misdemeanor proceedings. The Constitutional Court ignored the fact that this is an administrative procedure and, erroneously, referred to the inconsistency of the GAPA with the provisions of the Constitution and the ECHR, which guarantee the right to a fair trial, judicial protection and legal remedy. The second, equally unfounded, premise on which the Constitutional Court based its decision is the be-lief that the abolition of the objective deadline for reopening of the administrative procedure was necessary in order to enable the removal of the consequences of violations of the rights determined by the Constitutional Court or the ECtHR. By leaving only a subjective deadline, which is difficult to prove in practice, the level of legal certainty has been lowered. Finally, in its case law, the ECtHR considered that the existence of a limitless possibility of the official removal of final legal acts constituted a violation of Article 6 of the ECHR. The Constitutional Court's abolition of the objective deadline for reopening of the procedure has made this possible.
The subject of this paper is the study of a certain segment of positive environmental law in the Republic of Serbia in the context of administrative legal protection. The leading international ...instrument in the field of environmental protection is the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention). The Aarhus Convention rests on the so-called "pillars", the first two of which represent the availability of environmental information and public participation in decision-making. Therefore, the presentation of the administrative and legal protection of the environment in the Republic of Serbia will be presented from the aspect of these two elements, while in the final part of the paper, the application of some of the mentioned institutes will be considered using an example from practice.
The subject of the work is various administration operations that have a factual effect, but do not have a legal character in terms of the legal consequences of legal acts, because they implement ...general and individual acts into legal life or prepare the conditions for their adoption. Namely, the duties and tasks of administrative bodies, in addition to passing legal acts, also include taking material actions that are undertaken in the process of enforcing rights and affect the rights, obligations or legal interests of the parties, with appropriate legal protection in the event of illegal or inexpedient performance of administrative actions. The significance of the administrative actions taken by the administrative bodies in carrying out their tasks and duties is multifaceted, because they are characterized by the characteristics of authoritativeness and iterativeness, depending on whether elements of coercion or restrictions are applied in their execution. The concept and definition of the administration of the shop is regulated by the Law on General Administrative Procedure ("Official Gazette of the RS", No. No. 18/2016 and 2/2023 - Decision of the US RS. See: Authentic interpretation - 95/2018), which was in 2016, in accordance with the tendency of harmonized legislation with the legal system of the European Union, when administrative actions were introduced as a novelty in administrative-legal procedures. Therefore, this type of legislative activity is aimed at the modernization and introduction of the "good governance" system into the legal system of the Republic of Serbia, with the aim of efficiency and promptness in the implementation of certain material procedures that until then did not have an adequate legal definition.
The provision of public services as a legal institute is applied in the legal system of the Republic of Serbia for the purpose of realizing rights and legal interests in the context of exercising the ...general interest, and at the same time represents one of the administrative matters prescribed in the Law on General Administrative Procedure. The provision of public services, as a legal institute, is introduced into the administrative and legal system of the Republic of Serbia by the adoption of the aforementioned law, and in accordance with the trend of harmonizing our legislation with the legal system of the European Union. This institute is regulated by the aforementioned law (Articles 31 and 32), through two articles. Its introduction into the administrative legal system shows the seriousness of the work of the public administration, and thus enables a safer and more favorable position of the parties in terms of meeting the needs of users of public services. Bearing in mind that the provision of public services through the system of introduction of E-administration represents a novelty in administrative procedure, the effects of the application of this institute in practice will be subject to consideration in order to further improve its normative framework. Public administration reform is one of the key processes of European integration, which at the same time represents a process that should improve the entire system of public administration in the Republic of Serbia, and therefore the quality of services that public administration provides to users of public services.
Most imported/exported goods are not controlled by customs authorities at the border. This allows for the fast release of goods and the better functioning of international trade. The backbone of this ...system consists of customs declarations filed by the importers/exporters, selective control at the border, based on risk assessment, and the post-clearance audit (PCA) of the accepted customs declarations. This pape r deals with the questionable practice of the Serbian Customs Administration with regard to the conducting of the PCA, particularly its relation with the Law on General Administrative Procedure and the issues related to the classification of goods according to customs tariff. The author identifies issues regarding the transparency, interpretation and implementation of the PCA in Serbia and contests the (internationally recognized) practice of changing the classification of goods in accepted customs declarations. The author proposes possible solutions for identified challenges.
The subject of this paper is the special legal regime for administrative contracts under the recently enacted Serbian Law on General Administrative Procedure of 2016. We offer a comprehensive ...analysis of the new statutory rules, and examine their relationship to the general rules and principles of Serbian contract law. In addition, we identify the main shortcomings of the new regime, especially in the context of the lack of any statutory, scholarly and judicial typology of administrative contracts in Serbia. Furthermore, we highlight the lack of references to the notions of public interest, public purpose or public needs in the statutory definition of administrative contracts. This is cause for concern, since only the need to protect the public interest could justify the new statutory provisions, which significantly improve the contractual position of a public body as a contracting party in relation to the position of a private entity as the other party in administrative contracts. There is as yet no case law pertaining to administrative contracts in Serbia. This is why we turn to practical experience in the Croatian legal system, which is sufficiently similar and historically connected to Serbia via a shared Yugoslav heritage. We also consider German and French legal models, since they traditionally serve as comparative points of reference for Serbian legal scholars, judges and law makers.
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This paper deals with the concept of administrative actions and their classification in the Serbian law. With the adoption of the new Law on General Administrative Procedure in 2016, administrative ...actions have been defined in this Law. Therefore, there is a need for analysis and theoretical determination of this important institute of administrative law, bearing in mind that the domestic theory of administrative law dealt with administrative actions only on the basis of special administrative legal texts. This paper tried to analyze and compare whether there are significant differences between the theoretical conceptions and the new definition of Law on General Administrative Procedure, of administrative actions. Based on the spotted differences, the author tried to determine the concept of administrative actions, which would be in accordance with the new definition, but which will not neglect the previous theoretical views of the actions of the administrative bodies. Also, comprehensive classification of administrative actions was carried out, pointing to examples of administrative actions.
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Serbia, as a member of the former Yugoslavia, has Administrative procedure Act since 1930. This Law has been made under the model of Austrian Administrative Procedure Act of 1925. This Law has been ...verified through praxis of almost one century. Lately, Serbian Ministry of Justice and Public Administration prepared Draft Law on Administrative Procedure which is totally different from existing Law. Draft Law is combination of the rules taken from the new Croatian Administrative Procedure Act of 2010, which is far from being verified in praxis. On the other side, Draft is full of disputable theoretical definitions, which makes this text similar to 'scientific' article or book. Existing Administrative Procedure Act is in all senses much better than the Draft. With some minor changes this Law would be perfect and could be used easily in the praxis. The Draft would cause a lot of problems, make confusion and demand a lot of time in order to prepare civil servants to understand and implement this Law. That is all unnecessary! All this reasons make this author to come to the conclusion that this is not a step forward. This is neither step back, because we never had such bad law in the past. This is ten steps aside!.
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Poslovna sposobnost svojstvo je koje nam omogućuje stvaranje pravnih učinaka u svakodnevnom životu. Osobama s intelektualnim teškoćama to je svojstvo pravno i faktički ograničeno. Cilj je ovog rada ...određivanje problematike s kojom se susreću osobe s intelektualnim teškoćama u postupcima radi lišenja i vraćanja poslovne sposobnosti, odnosno analiza utjecaja odlučujućih čimbenika u postupku: posebnih skrbnika, sudskih vještaka i sudaca. Kako bi se dobio cjelovit uvid u navedenu problematiku, prvo je potrebno odrediti osnovne pojmove i razlike između pojedinih pojmova u vezi s kojima u praksi često zna biti zabluda. Za bolje razumijevanje uloge skrbnika u postupku nužno je dobiti uvid u institut skrbništva za punoljetne osobe, s posebnim naglaskom na skrbnike iz vlastite obitelji. Konačno, razmatraju se i pojedina potencijalna rješenja za poboljšanje položaja osoba s intelektualnim teškoćama u navedenim postupcima, što bi doprinijelo i poboljšanju kvalitete njihova života te općenito položaja u društvu. U radu se iznose i tumačenja autora koja se temelje na primjerima iz prakse, odnosno iskustvu stečenom radom s osobama s intelektualnim teškoćama, njihovim skrbnicima i obiteljima.
Legal capacity is a quality that enables us to create legal ef fects in everyday life. For people with intellectual disabilities, this quality is legally and factually limited. This paper aims to determine the issues faced by persons with intellectual disabilities in proceedings for deprivation and restoration of legal capacity and analyses the impact of the main participants in the proceedings: special guardians, court experts, and judges. To get a complete insight into the above issues, it is first necessary to define the basic terms and concepts, as well as the dif ferences between individual terms which, in practice, of ten give rise to misconceptions. To better understand the role of guardians in the proceedings, it is necessary to gain insight into the institute of guardianship for adults, with special emphasis on family members acting as guardians. Finally, some potential solutions for improving the position of persons with intellectual disabilities in these procedures are considered, which could contribute to improving the quality of their lives and their position in society in general. The paper also presents the author’s interpretations based on practical examples from experience gained by working with people with intellectual disabilities, their guardians, and their families.
Temeljna je okosnica ovog rada prikaz rješavanja upravnih postupaka javnopravnog tijela Grada Zagreba, što je aktualna tema svim sudionicima u skladu s odredbama Zakona o općem upravnom postupku, ...poštujući pritom rokove te štiteći pravne interese i legitimna očekivanja stranaka. Provedenim istraživanjem nastojalo se razmotriti i uvidjeti koja je stvarna nadležnost javnopravnog tijela, odnosno o kojim je vrstama upravnih postupaka riječ, s time da je u radu pozornost usmjerena na najbrojnije upravne postupke iz nadležnosti javnopravnog tijela: postupke osiguranja dokaza o stanju i vrijednosti nekretnine i postupke izvlaštenja. Relevantnost dobivenih podataka iznimno je bitna jer je riječ o upravnim postupcima koji su po zakonu žurni, o čemu govori upravo odredba članka 12. Zakona o izvlaštenju. Stoga je analiziran broj riješenih i neriješenih prijedloga u postupcima osiguranja dokaza vrijednosti nekretnine i postupcima izvlaštenja u kojima je javnopravno tijelo sudjelovalo u okviru svoje nadležnosti vodeći upravne postupke. Rezultat istraživanja pokazao je da je omjer između zaprimljenih i riješenih prijedloga osiguranja dokaza o stanju i vrijednosti nekretnine zapravo identičan, dok je u odnosu na omjer zaprimljenih prijedloga izvlaštenja u odnosu na broj riješenih prijedloga izvlaštenja u određenom postotku veći jer su postupci izvlaštenja po svojoj pravnoj prirodi kompleksniji. Postupci izvlaštenja obuhvaćaju cjelovit i složen dokazni postupak uz sudjelovanje svih stranaka i vještaka te se, između ostalog, veći broj prijedloga nalazi na rješavanju u povodu žalbe kod drugostupanjskog tijela.
This paper provides a review of resolving administrative proceedings of the public body of the City of Zagreb, which is an important topic for all participants in accordance with the provisions of the General Administrative Procedure Act, with respect for the deadlines and protection of legal interests and legitimate expectations of parties. The conducted research sought to consider and find what the actual competence of a public body is, i.e. what types of administrative procedures it involves, by focusing on the most numerous administrative procedures within the competence of a public body: procedures for providing evidence of the condition and value of real estate and expropriation procedures. The relevance of the obtained data is extremely important because these are administrative procedures that are urgent according to the law, which is exactly what the provision of Article 12 of the Expropriation Act says. Therefore, an analysis was carried out on the number of resolved and unresolved proposals in the procedures for securing proof of real estate value and expropriation procedures in which the public body participated within its competence by conducting administrative procedures. The result of the research showed that the ratio between received and resolved proposals for securing proof of condition and value of real estate is actually identical, while with respect to the ratio of received expropriation proposals in relation to the number of resolved expropriation proposals the percentage is higher to some degree since the nature of expropriation procedures is more complex. The expropriation proceedings include a complete and complex evidentiary procedure with the participation of all parties and experts, and, among other things, a large number of motions are pending before the appellate body.
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