Novelties in administrative dispute are pointed out in this paper, that is, an evaluation of the legality of procedures undertaken by public bodies in the administrative law domain which have ...infringed upon the rights, duties or legal interests of the party who has no recourse to regular legal remedy.
under the conditions of decentralization of power in Ukraine, positive changes in the management of cities in the regions of the country, unfortunately, are accompanied by an increase in the number ...of disputes between citizens (entrepreneurs) and local self-government bodies regarding the operation of small architectural forms and temporary structures. In settling disputes these disputes, there is an ambiguity in the judicial practice of courts of various instances and the legal position of local authorities, that often leads to an imbalance of private and public interests. The general purpose of this article is the formulation of a normatively grounded position, suitable for use in practical activities of local self-government bodies, state bodies, jurists, lawyers and administrative judges on the issues of functioning of small architectural forms and temporary structures that require resolution in the process of municipal and state administration and while the exercising justice. The methodology of the research was based on the use of normative theory of positive law with the use of mainly logical and semantic, comparative and legal methods, as well as the method of legal modeling and sociological survey. The main results of the study are: the definition of inconsistencies of legal acts and regulatory gaps in the mechanism of legal regulation of relations in the sphere of the functioning of small architectural forms and temporary structures; distinguishing normative features of unauthorized objects of urban development; determined the scope and defined the line of competence of local self-government bodies in rule-making and management in the sphere of the functioning of small architectural forms and temporary structures.
This paper deals with the process of administrative dispute from filing a lawsuit to enforcement, that is, the related disputable issues emerging since commencement of the application of the new ...Administrative Dispute Act. Furthermore, the paper pays particular attention to the full adjudication dispute, that is, bringing reformist judgement in administrative dispute. This is the situation when the court in administrative dispute does not only decide on the issue of legality of the Administrative Act, but rather by its judgement directly decides on the rights or obligations of certain persons in administrative dispute. Thereto, issues are analysed which are related to evaluating the presumptions for conducting administrative dispute and the lawsuit contents. Similarly, disputable questions in practice are dealt with in particular. These relate to the procedure of proposing the implementation and evaluation of evidence in administrative dispute, that is, the burden of proof, taking into account the subservient application of provisions from the Administrative Dispute Act as well as the disputable questions in practice related to achieving, that is, the existence of conditions for reaching reformist judgements in administrative dispute taking into consideration the issues of the link between the court and the lawsuit. Also analysed are the conditions for reaching a decision on the amount of damages and returning elements such as the accessory demands in administrative dispute. Also analysed are the provisions by which coercive enforcement of the judgement from administrative courts as well as disputable questions arising in administrative court practice to date in relation to non-enforcement of administrative court judgements.
Besides general repercussions of an omission of enforcement of court decisions on the protection of the rights of the parties and on the functioning of the legal system, such an omission in the ...administrative dispute has additional implications, related primarily to the realization of the constitutional guarantee of judicial review of administrative decisions, the concept of separation of powers, construction of a democratic state, etc. After general considerations of the matter of enforcement of court decisions, the author analyzes the normative framework of the enforcement of judgments of the administrative courts, as well as the evolution of this framework, points out the open questions regarding mentioned regulation, as well as the means of legal protection in case of an omission of enforcement of the verdict.
U radu se opisuje i analizira institut konačnosti u hrvatskom općem upravnom postupku. Sumarno se opisuje povijesni razvoj instituta konačnosti kroz zakone kojima se u hrvatskom pravu uređivala ...materija općeg upravnog postupka. Analizira se izostavljanje instituta tj. izraza konačnost u važećem Zakonu o općem upravnom postupku te ukazuje na činjenicu da se u posebnim zakonima izraz konačnost još uvijek koristi. Kako bi se navedeni institut mogao bolje razumjeti, u radu se u kraćim crtama opisuju i instituti legitimnih očekivanja i pravomoćnosti koji su u bliskoj vezi s institutom konačnosti. U zaključku rada zalaže se za ponovno uvođenje instituta konačnosti u Zakon o općem upravnom postupku te dosljednog korištenja izraza konačnost za označavanje procesnog trenutka u kojem se upravni akt nalazi nakon što je iskorištena žalba u upravnom postupku.
The institute of finality in Croatian general administrative procedure is described and analyzed in his paper. The historical development of the institute of finality is summarily described through the laws by which, in Croatian law, the substance of general administrative procedure was regulated. The absence of the institute of so-called finality in the valid General Administrative Procedure Act is analyzed and the fact that in certain laws the expression finality is still used is pointed out. For the stated institute to be better understood, this paper also briefly describes the institutes of legitimate expectations of legal validity which are closely related to the institute of finality. In conclusion, the author purports the re-introduction of the institute of finality in the General Administrative Procedure Act as well as the consistent use of the expression of finality for marking the procedural moment at where the administrative act is after appeals have been used in the administrative procedure.
The purpose of this paper is to examine regulatory agencies and regulated parties in an empirical study of administrative disputes initiated against the decisions of regulatory agencies in Croatia. ...We first aim to provide an overview of the status and trend estimates regarding these disputes; second, to answer the question how well does the system work from the perspectives of both the plaintiffs and the regulatory agencies; third, to identify the problem areas and to compare these with problem areas identified by the authors studying the broader area of administrative judiciary in Croatia, and finally to compare efficiency level of regulatory agencies to other public authorities in confirming the legality of their decisions and actions. Data on all administrative disputes against 12 Croatian regulatory agencies’ decisions in the 17-year period between 1995 and 2011 are used to identify the main characteristics and trends relating to these disputes. Data for 2012 to 2013 was also examined to identify initial changes and emerging trends in the new administrative judiciary system resulting from fundamental legal reform as part of Croatia’s process of accession to the European Union in 2013. The results show these administrative disputes to be often costly and timely with modest outcome for the plaintiff and impressive success rate for the most of regulatory agencies.
Prava iz članka 6. Konvencije za zaštitu ljudskih prava i temeljnih sloboda Vijeća Europe počivaju na ideji djelotvorne pravne zaštite. Suđenje u razumnom roku u uskoj je vezi s poimanjem poštenog ...suđenja o kojemu nije moguće govoriti u slučaju pretjerano duge neizvjesnosti stranaka u pogledu njihovih prava i obveza o kojima se odlučuje pred sudom. U tom je kontekstu za hrvatski upravni spor iznimno značajna 2012. godina u kojoj je zaživio bitno izmijenjen sustav upravnog sudstva u Republici Hrvatskoj. Pored nove organizacije upravnog sudstva i ovlasti upravnih sudova i Visokog upravnog suda proizašlih iz reforme upravnog sudstva u Republici Hrvatskoj, koja se odrazila i na trajanje upravnih sporova u Republici Hrvatskoj, novi je Zakon o upravnim sporovima u upravni spor ugradio mehanizme čija je svrha postizanje što veće učinkovitosti upravnih sudova. Važnost zahtjeva za bržim i efikasnijim upravnim sporom, kao i suđenjem u razumnom roku hrvatski je zakonodavac izrazio inkorporirajući načelo učinkovitosti u novi Zakon o upravnim sporovima kao jedno od temeljnih načela upravnosudskog postupka. Normativna rješenja Zakona o upravnim sporovima upućuju na zaključak da je tim Zakonom učinjen prvi korak usmjeren k učinkovitom upravnom sporu odnosno ostvarenju prava na suđenje u razumnom roku u upravnim stvarima, čime su stvorene normativne pretpostavke za poštovanje konvencijskog prava na donošenje odluke u upravnim stvarima u razumnom roku. Praksa upravnih sudova pokazuje da se upravni sporovi u pravilu vode u skladu s načelom učinkovitosti, što potkrepljuju i statistički podaci o prosječnom trajanju upravnih sporova u Republici Hrvatskoj koji ne izlaze izvan okvira razumnog roka prema standardima Europskog suda za ljudska prava. Ipak, uvažavajući potrebu uspostavljanja ravnoteže između zahtjeva za učinkovitim postupanjem suda i zahtjevima poštenog suđenja u ostalim aspektima koji bi u slučaju pretjeranog formalizma u tumačenju načela učinkovitosti, mogli biti dovedeni u pitanje, u svakom je konkretnom slučaju potrebno koristiti procesne mehanizme upravnog spora na način da oba zahtjeva budu zadovoljena.
Rights from Article 6 of the Council of Europe’s convention of the protection of Human Rights and Fundamental Freedoms rest on the idea of effective legal protection. The right to a speedy trial is closely related to the concept of a fair trial which cannot be in the case of exaggerated lengthy uncertainty of parties in relation to their rights and obligations to be decided upon before the court. In this context, Croatian administrative dispute the year 2012 was exceptionally significant when a significantly changed system of administrative adjudication in the Republic of Croatia occurred. Besides this new organisation of administrative adjudication and administrative court and High Administrative Court powers emerging from administrative court reforms in the Republic of Croatia which also reflected on the duration of administrative disputes in the Republic of Croatia, the new Administrative Dispute Act in administrative dispute built in mechanisms the purpose of which is to achieve maximum efficiency of administrative courts. The Croatian legislator expressed the importance of demands for speedy and effective administrative dispute, as well as speedy trial, in the incorporation of the principle of effectiveness in the new Administrative Dispute Act as one of the fundamental principles of administrative court procedure. Normative solutions of the Administrative Dispute Act imply the conclusion that this law is the first step towards efficient administrative dispute or achieving rights to speedy trial for administrative matters. This creates normative presumptions for respecting convention rights to reaching decisions in administrative matters within a reasonable timeframe. Administrative court practice shows that administrative disputes in principle are carried out according to the principle of efficacy. This is supported by statistical data on the average duration of administrative disputes in the Republic of Croatia, which do not exceed a reasonable timeframe according to European Court of Human Rights’ standards. However, taking into account that the need to establish a balance between the demand for efficient court procedure and the demand for the right to fair trial in other aspects could be called into question in the case of exaggerated formalism in the interpretation of the principle of effectiveness. In every concrete case, it is necessary to use the process mechanisms of administrative dispute in a way that both demands are met.
The development of administrative judiciary in the Republic of North Macedonia went through various phases after its independence in 1991. 16 years after itsindependence, in late 2007 the ...Administrative Court was established as one of the holders of the judiciary in judicial system. Before the establishment of this court, the administrative dispute was under the jurisdiction of the Supreme Court. The Administrative Court appears as a guarantor for exercising the rights guaranteed by the Constitution and the laws beforethe administrative bodies, which provide court protection in the event of an unlawful conduct by the administration. For this reason, administrative justice plays a key role in thelives of citizens who seek it when they consider that state authorities are preventing the enjoyment of a constitutional or legal right, or that they are imposing an obligation outside the legal rules. With this paper the author by explaining the process of development of theadministrative judiciary using: normative legal method, comparative legal method, systematic and objective interpretative methods, will focus on the specific analysis of ineffectiveness of administrative justice in the practice, which is due, first of all, to the lack of a mechanism for implementing the judgments of the Administrative Court.
This paper points out the advances made in dispute resolution in the area of taxation Law from the enactment of the Administrative Law Act of 2012. Similarly, the difficulties in the application of ...Finance Law are pointed out both in the actions of both public bodies and in administrative courts in the Republic of Croatia. Finally, some suggestions de lege ferenda are provided in the conclusion.
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