After words, silence is the second power in the world. (Ž.B. Lacorder)
Silence as the absence of sound. Like the antithesis of noise. The silence of deep platonic love, against the silent break in the soul. Otherwise, silence cannot be equated with silence. It is noticeably more spacious than silence itself. Because silence is "only" the negation of speech in the presence of personalities, listeners, those who are waiting for words. Silence like an evil doom. Silence as stillness. A silence that threatens with an encroaching sound. A minute of silence as an expression of condolence, "condolence" - giving mail to the deceased. Silence as peace, serenity. Like nirvana in the soul. Like a bonanza at sea. Silence in the church, deathly silence. But, again, there is frequent and uncomfortable silence in a situation where a conversation is expected. Silence as a signal that something is wrong around us. Silence like emptiness. Silence as forbidden inaction. As an omission, even as an irregularity, in the rank of illegality.
Therefore, silence - depending on the context - can be either heavenly or hellish, terrifying, muffled. Yes, silence can also be the result of fatigue or illness. Silence as a framework for meditation. For creativity. But also silence as uncertainty, insecurity. Maybe "silence is golden" in diplomacy or elsewhere. Perhaps not declaring is sometimes wisdom, even salvation. Human silence, as one of the sources of silence, can be a precursor to speech, an expression of hesitation, reflection. As opposed to quick reactions, hasty, hasty moves, words and sentences without proper coverage. Silence often heals us, gives us respite, relaxes us. But often it can slow us down, confuse us. To lead us on the wrong track, to be a bad ally - even a bad hint. How can we understand silence, that is, silence that lasts - and time passes? What is its sense, meaning. It depends on several circumstances. First: is silence ie. the silence was preceded by a question to which we are waiting for an answer - or not. Second: whether the silence arose spontaneously or was caused by some previous event (from technical to natural causes). Third: whether the sense, the meaning of silence, that is, silence can be deduced indirectly - for example, by the expression of someone's face (say, a smile) or by the movements of those present, head, hand. Is the concrete silence - considering the entire profile of that person - telling or surprising, unclear? Is someone's passivity, silence a sign of approval, acceptance or rejection of something?
As far as legal rules are concerned, they must not provide a basis for ambiguity when we are faced with legal silence, i.e. silence, absence of action, especially by public law subjects. In legislation - in such and such milieu - at least three moments are important: 1) whether there was a duty of the competent authority, i.e. of an authorized official for a statement, for a decision; 2) how long did that "official silence" last; 3) what legal effects the relevant law - general or special - attaches to the resulting "empty" situation. In other words, in a specific type of case in relation to a citizen/"party", is silence qualified with "yes" or "no" - or is it simply taken as nothing, as a neutral category. In the first two variants, the legal technique of fiction is successively combined - that there was no silence (but that the body worked, resolved), and the legal assumption about the direction of that "decision", in the interest of the party ("yes") or not. Which is crucial in terms of legal protection against "silence" qualifying either as "no" or as simple, "sexless" silence. In the case of the third variant, the knot is when proving that the absence of an official act is legally/legally equated with "yes", i.e. that something was gained through silence - and how tô, gained on the basis of the law (by the fact of "silence"), can be tangibly realized. In any case, when there is an official duty of the competent subject to work - and not to be silent! - the absence of that action represents legally impermissible silence. And the legal flow must take place, its continuity is conditio sine qua non realization of public and private needs.
The risks and harmful consequences of official silence are complex, in the sphere of several legal values of different breadth and weight. First, the protection of the party's rights, both its right to a decision in general - regardless of the content of that decision, as well as the right that is being decided on that occasion. Especially if a certain legal process is initiated in the interest of a party, individual or legal entity. Next: efficiency and economy of public administration work. More broadly, the public interest in the proper and timely functioning of the service. And legal certainty and trust in the state, especially in the public administration, are incompatible with its silence. All this in the context of a bundle of well-established European principles, rules and instructions, the so-called good governance (good administration). There are two possible answers to the question of when it exists, from which moment silence arises: a) the first, stricter - only when it is explicitly prescribed, clear and exact (numerically or in another way, say "until the end of the court case") the deadline for some action - upon its expiration; b) the second, more elastic - and when the deadline is not prescribed and the legal standard of a reasonable deadline is violated, that is, some legal principle, say process economy.
In special laws, for a certain administrative matter (for example, for the registration of business entities, the provision of other direct services, for foreign investments or for the protection of competition, etc.) it can be expressly determined that the administration's silence means compliance with the party's request. Also, in Directive 2006/123/EC of the European Parliament and the Council on services in the internal market silence is, in principle, equivalent to giving approval.
Legal measures to suppress the silence of the public administration in the European framework, they are diverse: 1) careful and limited introduction of the positive assumption of silence in certain areas of life; 2) strict disciplinary responsibility of public officials for illegally slow work, for bullying parties by not doing anything, and others; 3) prescription of the obligation to compensate damages - both the state, that is, the competent public body for illegal passive behavior, as well as the head of the body (either on the basis of objective, "command", or on the basis of subjective responsibility); 4) full court jurisdiction, immediate judicial takeover of missing administrative work.
Of course, the unjustified and inappropriate silence of the judiciary is even more dangerous than the failure of the executive, as well as the legislative, to fulfill their prescribed tasks. While "judicial silence" means the unquestionable prohibition of external influences on his mission. Followed by the studiousness of judicial deliberations and factual and legal issues in order to justly resolve the disputes that have arisen. As a definitive, independent and impartial provider of protection of individual legal situations, the court must always be available: to decide legally, objectively, effectively and in a timely manner.
In short, most generally, silence - and thus silence - is a certain stagnation, less often useful, more often harmful. "They say that silence dwells in contentment, and I tell you that rebellion, resistance and contempt dwell in silence" (K. Gibran). He - that standstill - shouldn't last too long. Because the world is not built on silence, on passivity, on silence, on waiting. But on activity, work, communication - and noises, sounds, on emotions that are expressed, not only in words. Pleasant or unpleasant. Immoderate silence is unnatural both at school and in the family, especially in partner relationships. But also at various events, public manifestations, even in the forest and on the river.
"I didn't say anything, and that was my biggest betrayal... Maybe it can't be otherwise, maybe we breathe through our dreams in different worlds, while in sleep we withdraw into ourselves"system. (JK Grendal, Silence in October)
PS The silences of our too short nights were so sweet and thin./ In them only the senses were enough./ And the parallel heartbeats of both remained hidden in the ear forever./
The author is a full professor at the Faculty of Law at the University of Belgrade and a visiting professor at FDES in Podgorica for several years
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