Bad laws are the worst kind of tyranny. (E. Berk)
The civilizational principle of the distribution of state legal functions - "separation of power" is always a "green", open question. Both political, democratic, legal and technical. In practice, it is completely difficult to implement and verify. And the authoritarian-authoritarian political pretensions of the executive are constantly lurking. In every state, the government is politically unique, but its diverse forms must be arranged legally and politically in order to achieve two seemingly contradictory goals: separation and connection. In order for the state mechanism to work harmoniously, for the social community to survive and develop, and for the citizens to feel security, protection and freedom at the same time. In order to reconcile the centrifugal and centripetal forces in the social community.
For legal life, it is initially necessary, but not sufficient - to constitutionally prescribe that "power is organized according to the principle of the division of power into legislative, executive and judicial", that "legislative power is exercised by the Assembly, executive power... by the Government, and the judicial court". At the same time, "the relationship between the authorities rests on balance and mutual control", followed by the traditionally proclaimed (or achieved?) independence and impartiality of the judiciary. ie judgments. "Montenegro is represented by the President of Montenegro", while "constitutionality and legality are protected by the Constitutional Court" (Article 11 of the Constitution of the Republic of Montenegro). But on the normative sheet, the division of state-law levers has quite a few nuances, toppings. Inevitable organizational-functional intersections for the sake of the fullest realization of both broader and narrower interests, the achievement of crucial social values: protection of citizens' freedoms and rights, justice, objective legality, certainty, effectiveness, timeliness, economy.
One of the legal mechanisms of a complex, hybrid character is an administrative dispute with full jurisdiction. "Upgraded" specialized adjudication in administrative cases/matters. Then the court, under certain legal conditions, does not limit itself only to the assessment of the legality of an individual public law administrative act that is challenged by a lawsuit, but embarks on the deeper "waters" of decision-making, immediately after the removal of the specific wrong: in further legal considerations, both factual and legal. issues from the administrative scope. What are the legal and factual limits of such and such a potential comprehensive judicial undertaking, what is the scope of a dispute of full jurisdiction? And what is the role and significance of the "nature of things" in that context?
The administrative dispute is regularly preceded by the administrative control of the public administration, following an appeal, that is, an objection in the second instance administrative procedure. Due to its procedural architecture and quality, it can be qualified as a preliminary, para-judicial check of the regularity of a certain (first instance) administrative act, i.e. through administrative means. While the powers of the court in an administrative dispute are of full jurisdiction judicial-administrative in content. The related type of litigation is the definitive corrective completion of administrative activity - in the merits, or only in the procedural aspect - through the courts. But that judicial "rounding" will not happen if the court finds that the contested act (or administrative "silence") is legal, that the lawsuit against it is unfounded. Thus, from the administrative judiciary, the cassatory powers are primary and unavoidable in every case, and the administrative ones - derived, successive, uncertainly activating and therefore, secondary.
An administrative-judicial matter, as a dispute, grows out of an administrative matter - as an undisputed individual situation in which both the public and a certain individual interest is involved - and in respect of which various administrative activities are undertaken: adoption of an administrative act, conclusion of administrative contracts, protection of service users from general interests and other administrative actions. So their legality is subsequently (re)examined in an administrative dispute. In Montenegrin law (and in many other legal systems), full jurisdiction is reflected in the court's authority to, after the judicial one, also resolve an administrative matter - directly, substantively and crowningly, instead of the public law body whose required act was unjustifiably absent, i.e. whose act, as illegal, the court annulled it by deciding on the lawsuit. Not returning the administrative case to the parent instance for re-judgment under public law. However, for the proper and non-exceptional implementation of full jurisdiction by the administrative judiciary - in addition to compliance with the relevant laws - it is also important for the judge to have an excellent cumulative knowledge of the meaning of justice and the spirit of public administration. And for that, additional professional training of judges is necessary.
An administrative dispute of full jurisdiction has two legal pivotal conditions, the fulfillment of which in Montenegro is valued by the Administrative Court (The Law on Administrative Disputes, Article 36): suitable "nature of things" and corresponding available factual situation. In this regard, I find that in the future (i) a principled judicial list - in the form of a legal position of the Administrative Court - of administrative matters exempted from decision-making in full jurisdiction is very necessary. And beyond that, the court should by no means be deprived of the area of its own assessment of when to engage in full judicial jurisdiction and when not. Of course, that judicial "measurement" must not be in the case of discretionary administrative matters - which are absolutely foreign to the court's merits - as well as those situations when full court jurisdiction is legally required. In the overall milieu considered, the category of "nature of things" is a vague limiting factor of full judicial jurisdiction. It is just a redundant "sponge" that serves as a cover for the court's free assessment, bearing in mind not only the profile, complexity and subtlety of the given case, but also the prosecutor's interest, the effectiveness and reasonableness of the decision deadline, as well as the court's capacities. While taking into account the principle of separation of powers, in order not to exaggerate judicial encroachment on the original administrative terrain. In short: the "nature of the case" category is just an unnecessary second name for the judicial discretionary assessment regarding (not) engaging in full judicial jurisdiction.
For example, the Administrative Court should by no means decide instead of the competent public law body in typical discretionary administrative matters: admission of a certain person to citizenship, issuance of a passport, granting of a permit to carry weapons, and others. In the same way, it is to be expected that the court, at its own discretionary cost, avoids ruling on the exclusion of students from elementary school, issuing a copy of the requested "clip" of the urban plan or extract from the cadastre, i.e. the registry book - which for some citizen, let's say, initially specifically, was unlawfully denied. On the other hand, I believe that, for the sake of illustration, it is expedient for the court itself to directly allow the monitoring of political elections, say to some non-governmental body, since it cashed in on an irregular act of the competent commission which did not recognize the right in question.
All in all, by lege ferenda, three groups of cases should be demarcated: 1) those in which the court must, ex lege, to resolve in full jurisdiction, as a response to the consequent administrative non-execution (whether active or passive) of its final judgments; 2) cases when the court ex lege was prohibited from "going" to full jurisdiction since it is a discretionary administrative matter; 3) the rest would fall under the discretion of the court, taking into account the sum of the circumstances of the specific type of public (in)legal life event.
In general, full court jurisdiction, along with the future desirable significantly increased court-organizational and personnel resources - the administrative trial system (and not just one administrative court), the classic two-level administrative trial - should contribute, in terms of the breadth and scope of court decision-making, to bringing administrative trials closer to others parts of the judiciary, civil and criminal in particular. On the one hand, at the administrative-procedural level, the goal is complete, effective and timely protection of subjective public rights and interests based on the law, in accordance with the relevant regulations. On the other hand, the scope of full jurisdiction of the Administrative Court should not seriously disturb the principle of separation of powers. Therefore, by default, the administrative judiciary has a protective, but also a "reserve" and complementary, operational-administrative mission. And the public administration must do its job correctly in everything, not to hide behind a hypothetical complete intervention of the administrative court - both judicial and administrative, in two successive steps. And to be appropriately sanctioned for any illegal act or omission, i.e. illegal slow action.
In the end, and based on reference French law, I believe that the Montenegrin administrative judiciary should have its own domain of public law matters, primarily disputes that it would resolve directly and substantially - for which only it, and not the public administration, would be initially competent . It would also be worth considering the sub-specialization of the local administrative courts, based on German law, especially for fiscal and social administrative disputes.
The laws of each country must correspond to some general principle. (T. Paine)
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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