Effectiveness of legal remedies in administrative proceedings (The case of Slovenia)

Polonca Kovač

No 246, Apas Papers from Academic Public Administration Studies Archive - APAS

Abstract: The author analyses the legal remedies provided by the General Administrative Procedure Act of the Republic of Slovenia (GAPA, 1999), as the only legal instrument for the annulment or modification of an issued decision. Particular emphasis is given to the appeal, often used directly on a constitutional basis. In addition to pursuing the protection of the rights of the parties in administrative proceedings, the purpose of the appeal is to establish an internal administrative supervision of line ministries. The aim of this paper is to assess whether and to what extent certain legal remedies under the GAPA are effective in (Slovenian) practice compared to the goals of their regulation. In order to protect their position, parties should have the possibility of challenging the act both after the issue of the act at first instance as well as after it has become complete or even final and has the force of res iudicata. Challenging an act is possible only through legal remedies provided by law. The modification of decisions after their completeness (after the end of administrative proceedings) or even after finality (following an administrative dispute) is diminishing the level of trust in the legal system (i.e. legal certainty). Therefore the use of, in particular, extraordinary legal remedies have to be limited to the most essential errors in the procedure. Legal remedies are specified primarily by the GAPA, by type as well as by grounds, bodies, effects, characteristics (dispositiveness/officiality, non/suspensiveness, non/devolution, etc.), and time limits. The GAPA distinguishes between the use of legal remedies in connection to completeness of a decision (within the administrative procedure when the decision cannot be challenged (any more) by an appeal) and finality (after the administrative dispute regarding the review of legality of complete decisions is no longer possible). The author is therefore suggesting several amendments to the GAPA to achieve more successfully the goals of present legal remedies and the effectiveness of the administrative system as a whole, including the reduced caseload of the courts when the appeal system is successful in persuading the parties not to continue with the administrative dispute after the completeness of a decision within administrative proceedin g.

Keywords: appeal; effectiveness; administrative system; administrative procedure; legal remedies; legal certainty; legality (search for similar items in EconPapers)
Date: 2010-09-10
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