Spór o właściwość a spór kompetencyjny w postępowaniu administracyjnym

Author(s): Mateusz Kowalewski / Language(s): Polish Issue: 14/2021

A dispute over competence or a dispute over jurisdiction should be understood as a situation in which at least two public administration bodies simultaneously consider themselves competent to conduct the proceedings and resolve a specific case (positive dispute) or each of them is considered inappropriate to settle it (negative dispute). In the administrative proceedings, the legislator made a distinction between those into disputes over jurisdiction and disputes over competences. Article 2 § 1 of the Code of Administrative Procedure creates a catalog for disputes over jurisdiction, distinguishing only in § 2 that disputes over the competences between the authorities of local government units and government administration bodies are settled by the administrative court, there is no more mention of the disputes in the Code of Administrative Procedure. Art. 4 of the Act on Proceedings Before Administrative Courts serves as a provision. The laconic regulation of disputes in administrative proceedings causes disputes in the doctrine and misunderstandings on the line of public administration bodies. The purpose of this article is to try to answer questions such as: what is jurisdiction in administrative proceedings? What is the difference between a dispute over jurisdiction and a dispute over competences? Are these significant differences? Is the not very extensive regulation of disputes troublesome for both public administration bodies and administrative courts? The research method is based on the analysis of the normative material of Polish law and the position of the representatives of the doctrine. The subject of the analysis is also the jurisprudence of administrative courts, mainly concerning the interpretation of the issue relating to disputes in administrative proceedings. When reviewing the literature on the subject of the dispute in administrative proceedings, the term “jurisdiction” is usually used interchangeably with the term “competence”. The above position is supported by the fact that the legislator, while distinguishing the disputes in question, does not introduce separate procedures for recognizing them under the Act Law on Proceedings before Administrative Courts. Both are associated with a situation of divergent views of public administration bodies as to which of them is empowered under the provisions of law to act in the case, in the form of action specified by these provisions. The only criterion that distinguishes these disputes is the type of entities involved in them, and the essence of these disputes is the same. The cause of disputes is the situation of non-compliance with the norms of substantive and procedural law with the norms of the political system. These phenomena occur especially in the period of systemic transformations of the state, when new organizational units perform the tasks and competences of transformed or abolished units, and when too often the statutory transfer of powers to exercise administrative judgments is carried out, which causes the so-called local property of the administrative authority concerned.

Засилване ролята на деликтната отговорност при защита на природната среда (Примерът на Франция)

Author(s): Polya Goleva / Language(s): Bulgarian Issue: 1/2022

The protection of the natural environment is one of the spheres of our life in which society and law must reach out, unite efforts and means to preserve the most valuable material good from the encroachments of unscrupulous and malicious human actions. The law is obliged to harness all possible means in the struggle for nature conservation, to combine criminal law with administrative penal sanctions, as well as with the tried and tested and most effective means of civil law - tort liability. There must be no white space in the legal protection of the natural environment. In this respect, French law should serve as an example. The French Civil Code in 2016 introduced a new composition of tortious liability - strict liability for damage to the environment.

Съдебна власт

Author(s): Not Specified Author / Language(s): Bulgarian Issue: 1/2022

Niewładcze formy działania administracji publicznej w postępowaniu egzekucyjnym w administracji

Author(s): Joanna Radwanowicz–Wanczewska,Nicola Fortunato / Language(s): Polish Issue: 5/2021

The article contains an analysis of the issues related to the application of non-ruling forms of activity of public administration in the performance of public law obligations through administrative enforcement proceedings. In principle, as part of such proceedings, public law obligations, understood as orders or prohibitions within the area of administrative law and other branches of law applied by administrative authorities (tax law, financial law, labor law), are carried out. Non-ruling forms of activity play a major role in administrative enforcement proceedings. The implementation of an enforcement measure may be related to authorized entities taking not only ruling, but also non-ruling actions. In order to apply an enforcement measure (which constitutes an institutionalized form of administrative compulsion), an administrative authority, on occasion, has to take non-ruling activities. Considering, primarily, the significant severity of the compulsion measures that may be applied towards the party obliged under enforcement proceedings, this proceedings should be carried out with respect for the values of a democratic state and with due care for the good of an individual.

Despre instituția prefectului în sistemul administrativ românesc. Punct și de la capăt

Author(s): Mădălina Cocoșatu,Codrin Dumitru Munteanu / Language(s): Romanian Issue: 03/2022

This study accurately highlights, on the one hand, the regulatory normative framework of the prefect and of the institution of the prefect starting from 1990 and until now and, on the other hand, the political vision on this institution, in the different stages of relationing between Romania and the European Union: pre-accession, accession, integration and present. The study critically analyzes both the ways of professionalization and depoliticization of the prefect function, as well as the actual repoliticization that took place in 2021. The failure to professionalize the function of prefect is presented in the broader context of the failure to professionalize the function and the public administration in general, one of the essential causes that determine the low performances of the Romanian public administration. Likewise there are critically exposed the legislative interventions to dilute the quality of the prefect of Government representative in the territory, in relation to the administrative function of the Government and its corruption into a territorial political agent of the Government, seen as an emulation of the political parties that form it. This political reverie is thus the basis of the legislative amendments that have led to the unconstitutional situation in which the implementation of the government programme in the territory by the prefect, which is in any case impossible to achieve as we will argue below, becomes the main commitment of the prefects, to the detriment of the very constitutional responsibility of the prefect, which determines the precise reason for the existence of the institution of the prefect – the administrative guardianship. All these are primarily the result of an ad-hoc and discretionary style of regulation – which can also be seen in the very large number of amendments brought to the framework law regarding the civil service – the Law No 188/1999, republished, as amended and supplemented: some of them by emergency ordinances subsequently declared unconstitutional, but which produced significant upheavals in the system.

Odpowiedzialność karna za podanie nieprawdy lub zatajenie prawdy w oświadczeniu o stanie majątkowym posła lub senatora – uwagi de lege lata i postulaty de lege ferenda

Author(s): Sebastian Kowalski / Language(s): English,Polish Issue: 1/2022

The study presents the issue of criminal liability for a crime consisting in providing false information or concealing the truth in asset declaration of a deputy or senator. The author critically analyses categorisation of the crime, discusses the scope of criminalisation and the statutory limits of punishment. It is particularly controversial that a deputy or senator bears significantly more severe responsibility for providing false information or concealing the truth in the asset declaration than – for the same behaviour – other persons holding the highest state offices, e.g. the prime minister or ministers. The inconsistent regulations of the Polish legislator regarding the criminal liability of other public officials submitting asset declarations are also highly debatable. The author concludes that it is necessary to change the current regulations of criminal liability for providing false information or concealing the truth in the asset declaration of a deputy, senator and other public officials. The optimal solution would be to introduce to Chapter XXIX of the Penal Code a new type of crime – submitting a false asset declaration – with the possibility of classifying the perpetrator’s act as a minor offence.

ZLOUPOTREBA SLUŽBENOG POLOŽAJA I OVLAŠĆENJA U PRAVU REPUBLIKE SRPSKE

Author(s): Dragan Jovašević,Miodrag N. Simović / Language(s): Bosnian,Croatian,Serbian Issue: 6/2014

Legal, quality, efficient and appropriate conduct of official and responsible persons instate agencies and legal entities in performing public authorizations and official duties entrusted to them is a basis and guarantee for public services and state entities functioning in general. Throughout the history and all the way till present time there have been individuals as well as groups that have, instead of working in the interest and for the state organs and public services in whose name they were supposed to act, broken the rules of service and in that way committed all sorts of misuses of position. Misuse of official position or authority is a basic criminal act against official duty regulated by law with gruel punishment by imprisonment. The act includes abuse of official position or authority, overstepping boundaries of official authority or failure to act on official duty. Depending on a perpetrator’s intention and type of consequence caused, this criminal act manifested in a basic and four severe forms. This paper speaks exactly about that, term, elements, characteristics and manifestation forms of misuse of official position and authorities as a basic official criminal act in legal system of Republika Srpska.

SUBJEKTI UPRAVLJANJA DRŽAVOM S POSEBNIM OSVRTOM NA MENADŽMENT U ZAKONODAVSTVU

Author(s): Stjepo Pranjić / Language(s): Bosnian,Croatian,Serbian Issue: 6/2014

How are the basic forms of state management of the state management and governance that are the subjects or their types different. The subject of governance because the state is the entity to which international law recognizes the legal personality. But as the state controls over their bodies (organizations), it means that these organs of state management entities according to the principle of separation of state functions to the organs of state administration and other bodies and legal persons. Here it is necessary to point out that the state is the subject of governance and the basis of derivation subjectivity governance. Subjects governance are natural persons who meet specific and / or general requirements prescribed heteronomous legal standard for the election or appointment or placed, elected or appointed position in certain organs and organizations in an official capacity with special legal authority to manage certain state authority or organization in a way performing internal (management) functions of state bodies and organizations instruments of planning, organizing and recruiting of personnel, finance, management and supervision.

TEŠKE POVREDE SLUŽBENE DUŽNOSTI I DISCIPLINSKE KAZNE ZA DRŽAVNE SLUŽBENIKE

Author(s): Damir Juras / Language(s): Bosnian,Croatian,Serbian Issue: 6/2014

In the introduction the author provides legal definition of civil servants, as well as disciplinary liability and official duty. The author than presents description and review of serious violations of official duty and their disciplinary sanctions in the Republic of Croatia, with an overview of the comparative law, indicating statistical data on the work of civil service courts, and quoting practices of the Civil Service, Administrative, and Constitutional Court of the Republic of Croatia, as well as the European Court of Human Rights. The author emphasizes the lack of regulations pursuant to which inappropriate behavior (violations of the law) by civil servants off duty would be punishable. Furthermore, the author suggests certain amendments of legal descriptions (qualifications) of violations of duty, concluding that the law proscribes sufficient catalogue of punishments enabling individualization of sanctions according to the specialties of each case of the violation of official duty. However, the author proposes introducing the punishment “conditional termination of service” back into the legislation, and, as legal consequence, cancelling the temporary conditional punishment, according to which the civil servant’s official duty is terminated if within one year of the enforceability of disciplinary sanctions their responsibility for another severe violation of official duty is determined, considering this is contrary to the principle of punishment individualization. The author proposes proscribing the reduction of pension or confiscation of pension for the retired civil servants, regardless whether disciplinary proceedings were initiated while they were on duty, for the offenses committed while on duty.

Zakonodavstvo kao uzrok pojave korupcije u organima uprave Bosne i Hercegovine

Author(s): Adela Plakalo,Hazim Okanović,Salaahuddin Abdibegović / Language(s): Bosnian Issue: 25/2021

The most important goal of this paper is to promote and emphasize the importance of detecting corruption risks in the legislative legislation, as a basis from which various forms of corruption can develop. Also, it is important in the theoretical analysis of the concept of corruption, as well as corruption risks and analysis of the assessment of susceptibility to corruption of draft laws and bylaws. In addition, the aim is to investigate the extent to which the assessment of susceptibility to corruption of laws and bylaws can prevent corruption, especially if we take into account that “ambiguity” in laws and bylaws, and the lack of “control mechanism” in them, the basis that leaves room corruption, ie key corruption risk. A quantitative approach to research was used in the paper. The survey was conducted at the local, cantonal, entity, and state levels on a representative and stratified sample. The research included managers in administrative bodies, professional associates and expert advisors in administrative bodies, as well as lawyers and lawyers employed in public institutions. The contribution also refers to a better understanding of the mechanisms for preventing corruption in administrative bodies through the establishment of a single authority and mechanisms for assessing the susceptibility of corruption to laws and bylaws, and mechanisms for monitoring the implementation of adopted laws and bylaws.

„Reforma stulecia” sądownictwa administracyjnego w Austrii – „nowa era” także dla sądownictwa administracyjnego w państwach młodej demokracji w Europie?

Author(s): Peter Chvosta / Language(s): Polish Issue: 98/2022

The aim of the study is to present the assumptions and effects of the administrative judiciary reform in Austria in 2012 (Verwaltungsgerichtsbarkeits-Novelle 2012). This reform is referred to in Austria as the “reform of the century” because it was the result of the largest and most far-reaching change to the Austrian constitution since its entry into force in 1920. This reform was long debated, but due to the reluctance of Austrian politicians to reform in this area, it was in fact neither expected nor hoped for. The notion of “reform of the century” also reflects the amazement at the happy “window of opportunity” in Austrian politics, which allowed the implementation of this long-awaited reform. This formulation should not, however, obscure the fact that the reform of administrative judiciary in Austria was not a particular innovation in an international context: rather, it consisted in largely late adaptation to international standards, valid in other European countries many years earlier. Nevertheless, the reorganization of the legal protection system also includes changes which in fact constitute “new ground” in Austria. In the following parts of the study, after reviewing the historical development and the foundations and framework of the “new” administrative judiciary in organizational and procedural terms, the characteristics of the current system of legal protection in Austria are presented in more detail.

Reformy sądownictwa administracyjnego w Czechach

Author(s): Pavel Kandalec / Language(s): Polish Issue: 98/2022

The present shape of the administrative judiciary in the Czech Republic is the result of events before January 1, 2003, when the present Supreme Administrative Court was established. This date is crucial, and everything that happened before it should be seen as elements of historical development of the administrative judiciary. Therefore, the study distinguishes two periods in the history of the development of the Czech administrative judiciary: 1) the activity of the Czechoslovak Supreme Administrative Court in 1918−1952 and 2) the activity of the administrative judiciary in 1992−2002. The next part of the study presents the current state of the Czech administrative judiciary, highlighting the importance of the judicial activity of the Supreme Administrative Court and the actions of the legislator aimed at eliminating the problem of overloading this court. The result of these actions by the legislator was the reform carried out in 2021, consisting in limiting access to the court of second instance in certain cases.

Reformy sądownictwa administracyjnego w Chorwacji

Author(s): Slavica Banić / Language(s): Polish Issue: 98/2022

The purpose of this study is to show that the 2010 Croatian administrative judiciary reform did not bring the expected results. As a result of the reform, the characteristic feature of judicial control of administration has changed − instead of resolving legal disputes as to the legality of an administrative act, unlimited judicial competence of administrative courts has been introduced. As a result of the reform, new institutions were introduced, such as: control of the legality of general acts, administrative contracts, judicial protection against actions and inactivity of the administration, etc. Moreover, the administrative judiciary was organized for the first time as two-instance. However, the Croatian administrative judiciary, despite introducing its full jurisprudence (unlimited jurisdiction), is still content with controlling the legality of administrative acts, and the way the courts interpret the provisions in the new legal status largely follows the patterns of the former socialist system – it is narrow, formalistic and purely literal, without taking into account the context or the specific circumstances of a given case. The main reason for this is the inadequate education and training of judges, the lack of their specialization and the reluctance of the Supreme Administrative Court itself to change the established patterns and practices valid in the old system conditions, to accept its new position and interpret the powers granted to it under the new, changed legal status.

Reformy sądownictwa administracyjnego w Ukrainie

Author(s): Larysa Zuieva / Language(s): Polish Issue: 98/2022

The history of the establishment of administrative judiciary in Ukraine dates back to the 19th century, but only after regaining independence did the process of its development begin. Administrative courts have only been envisaged in the Ukrainian Constitution as independent judicial organs since 2016, and the current system of these courts includes: the Supreme Court, appellate courts and district administrative courts. Proceedings before administrative courts are governed by the Code of Administrative Judiciary of Ukraine of 2005. The aim of the study is to present the challenges facing the Ukrainian administrative judiciary and to formulate postulates aimed at improving its functioning. The most important of these include ensuring the uniformity of the case law of the Supreme Court and modernizing the provisions on administrative proceedings.

Utworzenie sądownictwa administracyjnego w Gruzji

Author(s): Bidzina Sturua / Language(s): Polish Issue: 98/2022

The study concerns the Georgian administrative judiciary, which was shaped under the influence of European patterns. However, unlike in most European countries, Georgia has not established separate administrative courts – judicial control of the administration is exercised by common courts. The structure of these courts is three-tier and includes district (city) courts, courts of appeal and cassation courts, with adjudicating panels specialized in administrative cases. They adjudicate according to the principles set out in the Code of Administrative Procedure of Georgia adopted in 1999, which emphasizes the importance of the lawful rules of administrative court proceedings, such as the principle of impartiality of proceedings and equality before the law, independence and impartiality of the judiciary.

Reformy sądownictwa administracyjnego w Polsce

Author(s): Marcin Kamiński / Language(s): Polish Issue: 98/2022

The study concerns the factors influencing the shape of the Polish administrative judiciary, ranging from their conceptual patterns in the interwar period to the present day. Therefore, the article presents the history of administrative judiciary reforms as well as the constitutional and statutory foundations of the Polish administrative judiciary and their most important changes. The following parts of the study discuss issues related to the structure and internal organization of administrative courts, their jurisdiction and the concept of “administrative court case” as the subject of proceedings before an administrative court. The basic principles of administrative court proceedings as well as the types and nature of court decisions, including their appealability, validity and enforceability, were also discussed. The last part highlights the challenges faced by the Polish administrative judiciary and the prospects for its further reforms.

O potrzebie określenia właściwości rzeczowej sądów administracyjnych przy użyciu klauzuli generalnej

Author(s): Weronika Szafrańska / Language(s): Polish Issue: 98/2022

The aim of the paper is to assess whether the amendment to Art. 3 of the Law on Proceedings Before Administrative Courts proposed in legal community, which consists in determining the material jurisdiction of administrative courts using the general clause method, is a good solution. The considerations were preceded by a short observation on the linguistic inaccuracies occuring in the discussed issues. Then, the historical process of shaping the two main methods of further specifying the material jurisdiction of courts is presented: general clause and enumeration. As the proposed changes to Polish regulations are based on solutions adopted in German administrative court proceedings, the article addresses the problems faced by judges of German administrative courts when applying the general clause. Its interpretation causes many problems and providing an insight into them may be a valuable source of information for the Polish legislator.

Zmiany w polskim sądownictwie administracyjnym (zagadnienia wybrane)

Author(s): Maciej Dębski / Language(s): Polish Issue: 98/2022

The study presents an overview of the history of administrative judiciary in Poland and the current directions of its changes. In particular, the evolution of the scope of cognition of administrative courts, the progressing computerization process and the discussion on the model of adjudication were indicated. At the same time, the challenges related to the presented directions of changes were noticed and potential solutions were indicated that would help to face them. In conclusion, it was assumed that the development of administrative judiciary ensures respect for the individual’s subjective rights in relations with administrative bodies.

Reformy sądownictwa administracyjnego w państwach młodej demokracji (analiza prawnoporównawcza)

Author(s): Agnieszka Krawczyk / Language(s): Polish Issue: 98/2022

The study is the result of a legal comparative analysis of the directions of reforms in the administrative judiciary in the countries of young democracy: Poland, the Czech Republic, Lithuania, Croatia, Serbia, Hungary, Ukraine, Georgia and Kazakhstan. The analysis was carried out with reference to the patterns developed in old European democracies, mainly in Austria and Germany. Papers on reforms of the administrative judiciary in each of these countries were delivered at the international scientific conference: Reforms of administrative judiciary in the countries of young democracy (10–11.06.2021, Faculty of Law and Administration, University of Lodz). They focused on three issues: 1) contemporary challenges of the rule of law and administrative judiciary, 2) directions of changes in the national systems of administrative judiciary, 3) the future of administrative judiciary. The content of the study refers to this system of issues, which reflects the stages of development of administrative judiciary in the countries of young democracy. The conclusions drawn from the analysis show the results of reforms at each of these stages – from the constitutionalization of the rule of law, through the independence of the court-administrative procedure, to the stage of the present, extremely difficult challenges, not only of a procedural nature.

KADROVI U UPRAVI – STANJE I PERSPEKTIVE

Author(s): Edina Šehrić / Language(s): Bosnian Issue: 2/2021

The paper deals with the complex issue of personnel in the administration, ie civil servants as its most important substrate. The importance of the social or public function that civil servants perform is emphasized, as well as the special legal status that arises from it. The notion of civil servants is treated from both a theoretical and the positive legal aspect. Special importance is given to the analysis of normative regulations of labor relations of civil servants. European standards of civil service law are treated from the point of view of the adjusment of Bosnia and Herzegovina’s civil service legislation, and in accordance the strategic commitment of Bosnia and Herzegovina to join the European Union.