Zbornik Radova Pravnog Fakulteta u Splitu (Jan 2015)
Effect of conducting administrative dispute in enforcing administrative judgements: Temporary measures and postponed lawsuit effect.
Abstract
In this paper, the author analyses the effect that two institutes from the Administrative Dispute Act ( Zakon o upravnomm sporovima) have on administrative judgements : temporary measures and postponed lawsuit effect. Despite the fact that the administrative judgement in principle becomes enforceable before the actual commencement of administrative dispute, the Administrative Dispute Act (further referred to as ZUS in the text) enables parties to have two means, dependent on the judge’s evaluation, to prevent the occurrence to the parties of difficult and irreparable damage, that is, damage which is difficult to repair. ZUS allows the court conducting the administrative dispute case to decide upon the temporary measures if necessary in order to avoid difficult and irreparable damage. The court then has at its disposal a range of measures which it considers as necessary to avoid difficult and irreparable damage to the party suggesting the measures to be ordered. The other institute, postponing effect of the lawsuit, enables the party to seek postponement for enforcement of the court judgement until the case has been settled at first instance and perhaps until legal validity of the court judgement. However, such effect of a lawsuit is an exception and the court must carefully weigh up the party’s interests in postponing lawsuit effect compared to the threatening damage also on the public interest which would have immediately been accomplished by enforcing the administrative decision. The General Administrative Proceedings Act (Zakon o općem upravnom postupku, further referred to in the text as ZUP) and ZUS stipulate different supervision for deciding on postponing judgement enforcement. That is, art.140 subsection 1 of ZUP states that postponing judgement enforcement is decided upon by the public body who decided upon that administrative matter. Art.26 subsection 2 places the authority for decision making in the hands of the judge to whom the lawsuit was submitted. Such a situation might spark problems in practice so the author calls for the harmonisation of ZUP and ZUS. The author also points out certain illogicalities and differences in court practice of administrative judges regarding reaching decisions at the suggestion of the parties, either about the suggestion to issue the temporary measure, or the suggestion for postponing lawsuit effect.
