28. Apr 2017
The National Assembly of the Republic of Serbia passed the new Law on General Administrative Procedure (Official Gazette of the Republic of Serbia, no. 18/2016) (hereinafter: the Law), that came into force on 9 March 2016. The implementation of the Law starts on 1 June 2017, with the exception of the Articles 9, 103 and 207, which are being implemented as of 8 June 2016.
Considering that the general administrative procedure is to a large extension present in everyday legal life, so as the upcoming implementation of the Law, we analyzed some of the key points of this Law, as follows:
The Law stipulates new principles, while some of the existing principles are extended to a certain part, and therefore we emphasize the following:
Principle of legality and predictability. What is envisaged as a novelty to this principle is that the authority, during a procedure in an administrative matter, must take into account previous decisions passed in identical or similar administrative matters. The implementation of this principle shall contribute to the harmonization of practices between authorities and thus prevent the passing of different decisions on the same matter.
Principle of proportionality. This principle envisages that when the obligations are imposed to the party and to the other participant in the process, the authority is obliged to apply measures which are most beneficial to the participants, and by which the purpose of the regulation is achieved.
Principle of assistance to the party. This principle is also extended by the Law. Namely, if a change in regulations which is substantial for dealing with administrative matters occurs during the process, the authority has the obligation to inform the party about this change. This represents a step forward in comparison with former legal regulations regarding the subject obligations of the authority.
Principle of effectiveness and efficiency of the procedure. Another novelty stipulated by the Law refers to the responsibility of the authority to, in accordance with the law, ex officio review the information for which official records are kept, and which is necessary for decision making procedure, as well as to collect and process it. Additionally, the competent authority may request only information necessary for its identification and documents which confirm the facts for which the official records are not kept.
Institutes and actions in the general administrative procedure
We would also like to point out importance of the warranty act and administrative contract, as they represent new institutes stipulated by the Law.
Warranty act. IT is the act which obligates the authority to pass an administrative act of a certain content on party’s request, when stipulated by special law. The authority passes an administrative act pursuant to warranty act only on party’s request, provided that warranty act shall not be in confrontation with the public interest or legal interest of third parties.
Administrative contract. This contract is concluded between the authority and the party, and it is used to create, modify or terminate a legal relation in the administrative matter. The content of an administrative contract must not be in confrontation with public interest or with legal interest of the third parties. Unlike the power of the authority to terminate the contract, the party cannot terminate the contract if the authority does not fulfill all the commitments, but on the other hand the party may file a complaint.
Apart from abovementioned institutes, the Law shortens the final deadline by which the authority is obliged to issue the certificate on facts for which the official records are kept. The authority has the obligation to issue the subject certificate within 8 days, unless a special regulation stipulates otherwise. However, the Law does not envisage the possibility of calculating the deadlines hourly, as it was the case with the previous law.
The situations where an authorized official person may be excluded are now extended. Also, the Law now explicitly stipulates the possibility of an electronic communication as a form of written communication between the authority and the party.
A new legal remedy in the administrative procedure is a complaint, which can be filed due to a failure to fulfill the obligations from the administrative contract, as well as for the result of an administrative action and finally, due to the manner of providing public services, provided another legal remedy cannot be used. Also, the Law provides additional reasons for filing certain, so-called, extraordinary remedies. Under the conditions stipulated by the Law, Ombudsman has the authorization to make a recommendation to the authority regarding the, abolishment, termination or modification of the legally effective decision in order to comply with the Law.
The Law stipulates that the processes which are not completed by the beginning of implementation of this Law, are to be completed by the provisions of the preceding law. However, if the decision of the first instance authority is abolished or terminated after the beginning of the implementation of the Law, further process shall be conducted according to the provisions of the Law.
It also stipulates the obligation to harmonize the special laws which regulate certain issues of the administrative procedure in certain administrative areas with the provisions of this Law until 1 June 2018.
The Law on administrative procedure (“Official Gazette of the Federal Republic of Yugoslavia” no. 33/97 and 31/01, and “Official Gazette of the Republic of Serbia” no. 30/10) ceases to be effective as of 01 June 2017.
Considering that abovementioned text contains some of the key aspects of the Law, the entire text of the Law in Serbian language can be found on the following link.