Administrative Dispute

1. Administrative Dispute Term, Subject, Types, Competent Bodies, Parties, Procedure

2. The Term ‘Administrative Dispute’ • The administrative dispute is a form of organized and systematic judicial control over the legality of administrative acts • There are two systems of judicial control , or in other words two types of administrative disputes: The Anglo-Saxon (the USA, the UK, and so forth apply common law with competencies lying within the regular judiciary), and the European – continental (France, Germany, Belgium, Italy, the Scandinavian states, and other European nations apply special (specific) administrative-legal norms within the competencies of specialized administrative courts)

3. Subject of the administrative dispute • General (basic) clause system • Enumeration system • General clause system with negative enumeration

4. General (basic) clause system • All legal acts of administrative bodies (general and individual) are subject to administrative-judicial control. • There is no specific listing of acts that are subject to an administrative dispute, within a law, but there is a provision that covers all acts, in a general manner.

5. Enumeration system • Only the acts that are specifically listed within a law can be subject to an administrative dispute. • From a historical perspective, was the first system to develop. • The enumeration system foresees a limited range of the judicial control over the acts of administrative bodies.

6. General clause system with negative enumeration All acts of administrative bodies are subject to an administrative dispute, excluding acts listed (enumerated) within a legal provision, thus representing an exception from the general rule. For example, these acts, most often, include the basic legal acts of administrative bodies, acts of the legislative body, acts of the Government, etc…

7. Positive enumeration system • The new, Macedonian, Law on administrative disputes (LAD) contains a positive enumeration system • It explicitly lists the particular acts of the Government, units of Local Self-government, other state bodies and bodies with public authority, acts brought in a misdemeanor procedure, electoral procedure, acts on appointments and dismissals of public functions, and even general legal acts that regulate particular relations, administrative disputes arising from administrative contracts, and individual administrative acts for which second-tier deciding is not provided as a legal remedy.

8. Types of administrative disputes • Objective and subjective • Dispute on the basis of legality, and dispute on the basis of full jurisdiction • Previous (dispute on the basis of silence of the administration) and additional

9. Objective and subjective administrative disputes • An objective administrative dispute is a dispute where the subject that is being decided on is an objective legal situation or a general legal act • A subjective administration dispute is a dispute where the subject that is being decided on is a subjective legal situation or an individual administrative act

10. Dispute on the basis of legality, and dispute on the basis of full jurisdiction • A dispute on the basis of legality is an administrative dispute that conducts control over the legality of the act, and the court can subsequently nullify the illegal act and return it to its initial bearer, who will have to decide on it once again. • A dispute on the basis of full jurisdiction is a dispute through which the court nullifies the illegal act, and subsequently, on the basis of merit, solves the case with a judgment that fully replaces the act.

11. Previous and additional dispute • A previous dispute is the dispute on the basis of silence of the administration. The administrative-judicial procedure is being conducted against an act that was not brought, solely because of the fact that the competent body did not bring the act, which in turn violates the rights of the party. • An additional dispute is an administrative dispute conducted against an already brought, final, act.

12. Bodies competent for conducting the administrative-judicial dispute in the Republic of Macedonia • The Administrative Court of the Republic of Macedonia • First tier court composed of 29 Judges elected by the Judicial Council of the Republic of Macedonia • Brings Decisions in a council composed of three judges

13. Bodies competent for conducting the administrative-judicial dispute in the Republic of Macedonia High Administrative Court • 1) Has jurisdiction over apeals against decisions of the Administrative court; • 2) Decides on a clash of competencies between Local selfgovernment authorities; • 3) Has other competencies regulated by law.

14. Bodies competent for conducting the administrative-judicial dispute in the Republic of Macedonia • The Supreme Court of the Republic of Macedonia • Decides on the basis of extraordinary remedies (renewal of the administrative procedure) • Brings decisions in a council composed of three judges

15. Parties in the administrative dispute • Filer of the lawsuit– The entity that is not satisfied with the final administrative act. When referring to administrative contracts this can be any of the contracting entities. • Party being sued – The entity that brought the act being disputed (public-legal entity). When referring to administrative contracts this can also be the private entity that is a contracting party. • Interested entity – Entity, which with the nullification of the dispute administrative act, would suffer damages.

16. Basis’ for initiating an administrative dispute • Improper application of law • The inexistence of competence for bringing the act • Wrongful and incomplete determining of the factual situation

17. Phases in the administrative-judicial procedure • Initiating the administrative dispute with a law-suit, containing: title, headquarters, name and surname, the address of the filer of the lawsuit; the administrative act against which the lawsuit is being filed; reasons; Findings of the lawsuit that imply the direction and scope of the requested nullification;timeframe of 30 days

18. Phases in the administrative-judicial procedure • Previous phase А) Examining the formal elements of the lawsuit. B) Decision for discarding the lawsuit C) Decision for nullifying the act because of serious formal deficiencies

19. Phases in the administrative-judicial procedure • Regular procedure А) Response to the lawsuit in a period of 30 days B) Submission of all writings on the request of the court C) Closed hearing (judge Rapporteur and two judges), or public hearing in circumstances foreseen within the LAD

20. Judicial decisions brought in an administrative dispute • Decisions • Judgments

21. Judicial decisions • Discarding the lawsuit • Halting the administrative-judicial decision: А) A waiver of the lawsuit B) A new administrative act was brought during the administrative procedure • Ban for further conduct of acts for an official who, in defiance with law directly prevents or limits an individual or legal entity towards realizing their rights and freedoms, while on the other hand no other legal protection has been provided.

22. Judicial decisions • Judgment for annulment/Judgment in a dispute on the basis of legality or a nullifying judgment and judgment on the basis of full jurisdiction • Judgment on the basis of a dispute on silence of the administration • Judgment of acceptance and Judgment of rejection

23. APPEAL • Since December 2010 • High Administrative Court is a second instance court • Against the decisions of the Administrative Court parties can submit an appeal within 15 days, through the AC to HAC, while in cases where an administrative agency seeks legal remedy, the agency submits it’s appeal through the State Attorney

24. Extraordinary legal remedies Repetition of the procedure • On the request (lawsuit) of an entity there is e repetition of the procedure, which has already been finalized with a judgment or decision • In a period of 30 days from the day the entity found out about the reason for the repetition, or from the day the decision was submitted (subjective deadline). A repetition cannot be requested following the expiration of five years from the validity of the decision (objective deadline). • The decision on the basis of the procedure for repetition is brought by the court that brought the judgment (either discarding with a decision or accepting/rejecting with a judgment)

25. Extraordinary legal remedies Reasons for a repetition of the procedure: If the entity found new facts, or if it finds and acquires the possibility to use new evidence on the basis of which the dispute would be solved in a more favorable manner for that entity, taking into account that these facts would have been indicated or used in the previous procedure If the decision of the court was brought as a result of a criminal offence conducted by a judge or staffer in the court, or is obtained through fraud of the representative or authorized representative of the entity If the decision is based on a judicial decision that is later abolished If the decision is brought on the basis of false evidence If the entity can use a previous decision brought in the same administrative dispute If an interested entity was not given the opportunity to take part in the administrative dispute On the basis of a decision brought by the European Court for Human Rights