Introduction
The issue of the indirect review of administrative action in Serbia and Croatia boils down to the matter of the control of constitutionality and legality of general legal acts, given that all individual legal and real acts of the administration are directly reviewable before the administrative and civil judiciary. The legislative framework is somewhat better in Croatia, given that the administrative courts in Croatia can directly review general legal acts that are issued by non-central authorities (e.g., municipal regulations). Nevertheless, the overall legal framework in Serbia and Croatia is quite similar when it comes to indirect review of the general legal acts of administration, thus justifying combining them into single research. Researching scarce case law of Serbian and Croatian courts, the author depicts a rather grim situation in which Serbian and Croatian courts are not allies of their citizens when it comes to the combat against unconstitutional or illegal general legal acts of their respective administrations. In this post, based on the chapter, which ought to be published in Indirect Judicial Review in Administrative Law: Legality vs Legal Certainty in Europe (eds. Mariolina Eliantonio and Dacian C. Dragos), the author examines the roots of this problem and provides proposals for potential improvement.
Principles in theory
‘Whoever hits the target, misses everything else’, as the famous Serbian writer Danilo Kiš put it, is not necessarily always true. At least, it is not true when it comes to the judicial control of administrative action as the notion of indirect review illustrates: a plaintiff can target, i.e., challenge, an act or activity of an administration and hit the one behind it as well.
The target, however, in Serbia and Croatia is rather large, since most of the legal and factual acts of the administration in Serbia and Croatia can be directly challenged before the administrative and/or other courts. The issue of the indirect review of administrative action in Serbia and Croatia boils down to the matter of the control of constitutionality and legality of general legal acts. All individual legal and factual acts of the administration are directly reviewable before the administrative and civil judiciary. Moreover, in Croatia, only laws and bylaws of the central state authorities are not directly reviewable by the administrative judiciary.
Serbian courts (though there have been certain legal discrepancies, eventually resolved by the Constitutional Court), including the Administrative Court (Serbia has a single-tier judicial review of administrative acts and only one Administrative Court), are authorized to conduct an indirect review of laws (acts of parliament), bylaws, and other general legal acts. Croatian administrative courts (there are four first-instance administrative courts and the Higher Administrative Court, acting as the appellate court) are not allowed to indirectly review the constitutionality of laws. Should they come across a law they deem not to be in accordance with the Constitution, they are obliged to temporarily stay their proceedings and file a request for the determination of the constitutionality of that law with the Constitutional Court. Croatian administrative courts are, on the other hand, competent to conduct an indirect review of bylaws, but such a review is temporary and conditional upon the confirmation of the Constitutional Court, i.e., if they decide not to apply a bylaw, they deem illegal, they must ask the Constitutional Court to check whether that bylaw is indeed illegal. If the Constitutional Court later finds the disregarded bylaw to be constitutional and legal, the decision of the court can be changed upon request of the parties. The ratio behind this provision is the idea that the Constitutional Court shall finally settle the matter of constitutionality and legality of a particular bylaw and prevent a situation in which one court applies said bylaw, while another disregards it, thus eliminating legal uncertainty.
Ineffective protection against general legal acts in Serbia and Croatia
Despite their competence to conduct an indirect review of general legal acts, including regulations enacted by the administration, examined case law of the Serbian and Croatian administrative courts demonstrates the lack of eagerness to perform such an indirect review, especially the Serbian Administrative Court. Additionally, the research shows that the Croatian administrative courts, when they decide not to apply a bylaw, they deemed illegal, completely disregard their duty to subsequently initiate the review process before the Constitutional Court.
Such behaviour of administrative courts is only a brick in a wall in a wider context of inadequate legal mechanisms for the protection of citizens against general legal acts in Serbia and Croatia.
Given that the parties are not able to shield themselves against illegal administrative regulations (bylaws) before administrative courts, they have to resort to the constitutional courts. Parties have two options. They can submit constitutional appeals, challenging individual acts directly and general legal acts indirectly. The other possibility is to submit initiatives for direct review of the constitutionality and legality of laws, bylaws, or other general legal acts. Initiatives are actio popularis submissions that might urge the constitutional court to ex officio initiate a review of constitutionality and legality of certain general legal act but do not oblige the constitutional court to do so. However, in both instances, the legal protection mechanisms are time-consuming and inefficient, since the constitutional courts are swamped with constitutional appeals and initiatives. Moreover, constitutional appeals require parties to exhaust all available legal remedies. Not only that this is costly and slow, but it is also inadequate in a situation in which challenged individual administrative acts are based on general legal acts, which are unconstitutional and/or illegal, and which the administrative courts are not willing to disregard. Hence, the parties are doomed not to succeed in such proceedings but still must exhaust those ‘remedies’. As was said, the inherent deficiency of initiatives for direct review of constitutionality and legality is the fact that they do not oblige the constitutional courts to initiate the review process upon them.
Furthermore, as was mentioned, the administrative courts in Croatia have a tendency not to initiate the review process before the Constitutional Court even though they decided not to apply certain bylaws. This might lead to legal uncertainty and discrimination if different courts decide differently when it comes to the application of particular general legal acts.
A potential way forward
The regulation of the system of indirect judicial review of general legal acts in Serbia and Croatia has to be considered within a wider setting. On the one hand, the role of courts, especially administrative courts, and the constitutional courts in the (in)direct review of these acts has to be considered. On the other hand, the regulatory outcome must reflect the result of an interplay of four basic legal values – legality, legal certainty, procedural efficiency, and access to justice.
A possible legal solution would be the one that exists in Croatia – it allows courts to perform an indirect review of general legal acts, with the obligation to subsequently initiate the procedure before the constitutional courts (it could be replicated in Serbia). This legal solution should be assessed from the perspective of the four stated basic legal values.
It is submitted, in this respect, that the tension between legality and legal certainty is not very problematic. This is because the courts could decide not to apply a certain general legal act, but the constitutional court would have the final word on the constitutionality and the legality thereof. Provided the courts immediately initiate the procedure before the constitutional court and that the latter resolves the matter with priority and expediency, legality would be observed (a general legal act that is not in conformity with a higher legal act would not be applied), while legal certainty would not be significantly threatened (the final verdict of the constitutional court would be reached quickly and produce an erga omnes effect).
However, this legal solution falls short when it comes to access to justice and procedural efficiency. While it enables the control of the courts when they accept a party’s request and decide not to apply certain general legal acts, it does not ensure that the courts will duly decide on such requests by the parties. The courts can disregard their duty and apply a general legal act, despite serious doubts as to its conformity with superior legal acts (as indeed happened in Serbia and Croatia).
In turn, this leads to procedural inefficiency because parties are forced to submit constitutional appeals and initiatives for direct review to the constitutional courts. This creates a backlog in the work of the constitutional courts.
A way forward would be the solution offered by the Serbian Constitutional Court judge Dragan Stojanović:
- To allow the courts to conduct the indirect review of bylaws, with the duty to initiate the procedure before the Constitutional Court.
- To forbid individuals from submitting initiatives to the Constitutional Court.
- To allow individuals to submit formal proposals for the direct review of those laws and bylaws that directly affect their legal situation.
- To enable the constitutional court to indirectly review general legal acts that do not have direct legal effect as a preliminary issue in the proceedings upon constitutional appeal against an individual act.
In this way, access to justice would be assured, with the possibility of directly affected parties seeking protection from the constitutional courts, if regular courts fail to duly examine their requests for indirect review of general legal acts. Furthermore, the current actio popularis initiatives to the constitutional courts would be replaced by formal requests and constitutional appeals of parties having a direct legal interest in the pertinent matters. Logically speaking, it is unlikely that the number of these formal requests and constitutional appeals would exceed the current number of initiatives, given the more restricted provisions on legal standing.
Judge Stojanović’s proposal could be improved from the perspective of efficiency. The deficiency thereof is that the constitutional appeal still requires all the legal remedies to be exhausted. The ensuing time lag endangers both access to justice and procedural efficiency since it might take years until the first case reaches the constitutional court. In the meantime, a potentially unconstitutional or illegal general legal act can yield dozens, hundreds or even thousands of cases. The law in Serbia and Croatia prescribes that if a general legal act is later found to be unconstitutional or illegal, all the cases in which it was applied could be reopened. Therefore, his proposal might be ameliorated by enabling parties claiming that individual acts affecting their rights and interests are based on a law or bylaw, which is not in conformity with a superior legal act, to challenge that general legal act directly before the constitutional court by a constitutional appeal against such an individual act. Bypassing courts that are generally reluctant to conduct an indirect review, would eliminate the time lag and provide effective legal protection not only in a particular case but also in all the other cases where the issue of the constitutionality or the legality of the same general legal act is raised. Moreover, this could be done without constitutional changes, through the interpretation of the Serbian and Croatian constitutional courts that in such situations there are no effective legal remedies available, thus allowing the submission of constitutional appeals directly. Alternatively, the first-instance courts should be given the chance to perform an indirect review of general legal acts. If they fail to conduct it, the constitutional appeal path should be available. The legislator should choose one of these two options upon the assessment of the effectiveness of the system of indirect judicial review and the potential increase of workload of the constitutional courts.
Should the Serbian and Croatian administrative courts abandon their unwillingness to conduct an indirect review of the general legal acts of administration, they would strengthen the rule of law, increase the level of legal protection of parties and decrease the workload and backlog of their constitutional courts, swamped with constitutional appeals and actio popularis initiatives for direct review of mentioned acts. The legal framework for such action either exists or requires little amendments to its interpretation.
Posted by Vuk Cucić (University of Belgrade)
Suggested citation: V. Cucić, “Hitting not only the Target: The Indirect Review of Administrative Action in Serbia and Croatia”, REALaw.blog available at https://realaw.blog/?p=2413
