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- INTRODUCTION (History, purpose of the review and classification of administrative acts, definition of an administrative authority)
- 1. Main dates in the evolution of the review of administrative acts
During the existence of the Federal Republic of Yugoslavia in administrative disputes, courts decided on the legality of acts by which the State bodies or other organizations exercising public powers, are deciding on the rights and obligations of natural persons, legal persons or other parties in certain administrative matters. Administrative disputes in Montenegro were resolved by the Supreme Court of Montenegro.
In 2003 Montenegro adopted the Law on Administrative disputes, and in 2005 the specialized court - Administrative Court of Montenegro started working, in which responsibility is resolution of administrative disputes.
The Law on Administrative Disputes ("Off. Gazette of Montenegro", no. 60/2003) stipulates that in the administrative litigation the court decides on the legality of administrative acts and legality of other individual act as specified by the law.
Administrative Act is defined by law as an act by which a state authority, local governments body, and institutions and other legal person in the exercise of public authority, decides in administrative matters of the rights, obligations or legal interests of natural or legal persons, and other individual act as an act by which an organ or institution and legal entity decides on the rights, obligations or legal interests of natural or legal persons in other legal matters.
- 2. Purpose of the review of administrative acts
Review of administrative acts aimed at controlling the executive and local authorities in the exercise of the rights and obligations of natural and legal persons and its function is the rule of law. By review of administrative acts guaranteed rights and obligations of natural and legal persons are protected from unlawful actions of the competent authority and the equality of all in the exercise of those rights and obligations is provided.
The essence of the review is that the executive and local authorities in the exercise of the rights and obligations of natural and legal persons are "forced" to operate exclusively in accordance with the law and in the exercise of those rights and obligations have equal treatment for all.
- 3. Definition of an administrative authority
The definition of administrative power, in terms of judicial review, every single decision of the executive and local authorities on the rights and obligations of natural and legal persons.
Under the definition of the executive authority means the actions of other entities that do not have the character of the executive and local authorities, and they are authorized, pursuant to regulations, to decide on individual rights and obligations of natural and legal persons (bodies exercising public authorities).
- 4. Classification of administrative acts
There is a classification of administrative acts on the individual and the general. Revision of individual administrative acts is carried out by the Administrative, or the Supreme Court.
Assessment of the legality of general acts is within the competence of the Constitutional Court of Montenegro.
- I – ORGANIZATION AND ROLE OF THE BODIES, COMPETENT TO REVIEW ADMINISTRATIVE ACTS
- A. COMPETENT BODIES
- B. RULES GOVERNING THE COMPETENT BODIES
- C. INTERNAL ORGANIZATION AND COMPOSITION OF THE COMPETENT BODIES
- D. JUDGES
- 11. Status of judges who review administrative acts
No. Judges who conduct review of administrative acts do not belong to a specific category of judges.
The conditions for the appointment of judges who carry out review of administrative acts are the same as for judges in other courts, except for conditions relating to work experience (10 years).
- 12. Recruitment of judges in charge of review of administrative acts
Administrative Court judges are elected in the same manner as judges in other courts - on the basis of a public announcement. They are elected by the Judicial Council.
If for a judge of the Administrative Court applied a person that has not previously been a judge, we perform testing of civil substantive and procedural law, general administrative procedure, administrative dispute, the European Convention for the Protection of Human Rights and Freedoms, case law of the European Court of Human Rights.
- 13. Professional training of judges
According to the Law on Education in Judiciary, the education is organized as follows:
- Initial (organized for associates in the courts) and
- Continuing for judges in order to maintain and improve their knowledges, skills and abilities for the efficient performance of judicial functions.
- 14. Promotion of judges
Upon applicable laws, the judge career advances by appointment in the higher court.
Criteria for the election of judges who are career advancing are among others, work experience (length of service), the results of the last three years, communication skills and personal appearance, worthiness to perform judicial functions, professional development, science titles etc.
- 15. Professional mobility of judges
A judge of the Administrative Court, with his consent, by the decision of the Judicial Council may be transferred to a higher court (Supreme Court) for a period up to one year, if in that court there is a temporarily increased workload or when there are a large number of pending cases, which, by with the existing number of judges can not be solved. A judge who is referred must meet the requirements for election to the court in which he/she is refered to.
The Judicial Council may refer a judge, with his consent for the period up to three years, to the Ministry of Justice, the Center for Judicial Education and the Secretariat of the Judicial Council to participate in the affairs of these bodies that are related to the improvement of the work of courts, and especially the introduction of international standards in the courts .
In the case of a reorganization of the courts, which reduces or abolishes the number of judicial positions, the Judicial Council may move forward or refer to another court a judge without his consent.
- E. ROLE OF THE COMPETENT BODIES
- F. ALLOCATION OF DUTIES AND RELATIONSHIP BETWEEN THE COMPETENT BODIES
- II – JUDICIAL REVIEW OF ADMINISTRATIVE ACTS
- A. ACCESS TO JUSTICE
- 21. Preconditions of access to the courts
An administrative dispute may be initiated against an administrative or other act which was passed in the second degree.
An administrative dispute may be instituted against the first-instance administrative or other act against which no appeal is allowed in administrative or other proceedings.
An administrative dispute may be initiated when the governing body on the request or the appeal of a party has not passed adequate administrative or other act, under the conditions prescribed by law.
- 22. Right to bring a case before the court
An administrative dispute may be initiated by a natural or legal person, to whom an administrative act violated any law or lawful interest.
State bodies, organizations, a village, a group of persons or others who do not have a legal entity may initiate an administrative dispute if they have the rights and obligations that have been decided upon by an administrative or other proceedings.
An administrative dispute may be initiated by the public prosecutor or other competent authority if the administrative or other act violated the law in favor of a natural person, legal person or other party, or there was a violation of law to the detriment of the state, local governments, institutions and other legal entities.
- 23. Admissibility conditions
Party in an administrative proceeding (natural or legal person on whose rights and obligations was decided in the administrative procedure) does not have to explain particular interest in the annulment of the administrative act.
Interest in the institution of administrative dispute must be proven by the person who was not a party to the administrative proceeding.
- 24. Time limits to apply to the courts
The right to initiate the review is limited in time. The general deadline is 30 days from the delivery of the administrative act.
For individual administrative acts, the law prescribes a shorter period. These limits range from 72 hours of the delivery of administrative act until 15 days after that delivery.
- 25. Administrative acts excluded from judicial review
Montenegrin Constitution stipulates that all final individual acts (without exception) enjoy legal protection.
However, the Law on Administrative Disputes, which was passed before the said Constitution (2003.), exempted from the review of the acts:
- Which were adopted in matters in which legal protection is provided outside of the administrative dispute, and
- Adopted in matters on which, directly on the basis of constitutional powers the Parliament of Montenegro and the President of Montenegro decides.
- 26. Screening procedures
Administrative disputes are initiated by a lawsuit. The complaint must specify the data for the plaintiff (name, occupation, place of residence and address, or name and seat of the plaintiff), the act against which the complaint is filed, why the complaint is brought and in which direction and scope of the proposed annulment of the act. If a lawsuit seeks the return of property or compensation, a specific claim regarding the property or the amount of damages must be made.
By random case assignment the case is assigned to a judge.
Immediately after receiving the case, a judge examines whether the claim is complete and comprehensible, and if is not, he shall call a party to order the latter. If the plaintiff fails to remedy the deficiencies in the complaint, and they are designed to prevent operation of the court, the complaint is rejected as messy.
If the claim is complete and accurate, firstly we are examining its timeliness, does the claim disputes the administrative or other act, whether the challenged act affects the rights of the claimant, whether an appeal was previously used and whether there is a final court decision rendered in an administrative or other dispute on the same matter.
If we find that any of these reasons exists, the Court dismisses the complaint.
If a complaint with the stated reasons shall not be rejected, it shall be forwarded on the response to the defendant authority and interested parties, if any, and from the defendant's body at the same time all the case files are asked for.
Once the documents are completed it is decided on the submitted claim. Administrative disputes are resolved at the oral hearing, which is obligatory if the party requests that in the complaint or in the statement of defense, or in a closed session.
The average length of the period in which the decision must be made is not prescribed, but it must be ensured that the decision is made within a reasonable time. If the decision was not made within a reasonable time the party, according to the Law of the right to a trial within a reasonable time have the right to file control request (legal means to expedite the process), and a claim for damages for violation of the right to a trial within a reasonable time.
- 27. Form of application
The form of the request is not prescribed. However, the Law on Administrative Disputes established a mandatory content of the requirement (lawsuit). The application must include: full name, occupation, place of residence and address or the name and registered office of the prosecutor, the act against which the complaint is directed, why the action is brought, as well as the direction and scope of the proposed annulment of the act.
With the claim must be submitted the original or certified copy of the act against which the complaint is filed. If a lawsuit seeks the return of items if compensation must include a specific requirement for the objects or the level of the damage.
- 28. Possibility of bringing proceedings via information technologies
In this moment there is no possibility of bringing proceedings via the Internet. Further development of JIS(Judicial information system) this possibility will exist.
- 29. Court fees
There is a courts fee, for submitting the lawsuit and fee for judicial decision.
- 30. Compulsory representation
It is not compulsory to hire a soliciter. It is up to the party to engage a laywer.
- 31. Legal aid
According to the Law on Free Legal Aid in order to realize the right to a fair trial to an individual, who is financially unable to exercise the right to judicial protection without damaging the necessary support of themselves and their families, a free legal aid is provided.
Free legal aid includes the provision of necessary resources to fully or partially cover the costs of legal advice, drafting of documents, representation in proceedings before a court, state prosecutors and the Constitutional Court of Montenegro, and the procedure for the amicable settlement of disputes, as well as exemption from paying the costs of the proceedings.
Free legal aid is provided by lawyers from the list of the Bar Association of Montenegro, a decision on legal aid at the request of a party is made by the president of the Basic Court or a judge who he authorizes, on whose territory the applicant resides or is domiciled.
If the request for free legal aid is rejected, a party shall be entitled to an administrative dispute.
- 32. Fine for abusive or unjustified applications
Be a fine, up to 1,000 euros, the court shall punish the party or other participant in the proceedings, which in the process insults the court.
If a person who participates in a proceeding or a person who is present at the hearing insults the court or other participants in the process, interfere the work or disobey the orders of the judge to maintain order, the judge will warn him. If a warning is unsuccessful, the judge shall warn a person, remove from the courtroom, or fined up to 1,000 euros, and he can be removed and fined.
During the proceedings, the court shall impose a fine of up to 1,000 euros to a legal representative, attorney and intervenor whose civil actions hardly misused the rights recognized by process law.
The penalty for unmeritorious claims does not exist.
- B. MAIN TRIAL
- 33. Fundamental principles of the main trial
The Law on Administrative dispute and Civil Procedure Code, which applies as appropriate to the proceedings before the administrative court, determines all of the following principles prevailing at the hearing. Question of the trial within a reasonable time is stipulated by a special law, so it can be concluded that these principles are stemming from national law.
- 34. Judicial impartiality
Montenegrin Constitution and the Law on Courts, establishes the principle of independence of a judge in the exercise of judicial function.
If a question the judge's impartiality in a particular case is asked, the obligation for the judge is established to exclude himself from the trial in this case and the right of a party is established to require disqualification of the judge in the case.
According to the Civil Procedure Code judge is required to request an exemption for example, if he/she is a relative of the party, the party's representative, the party to the dispute, if in the same case, he/she participated in the decision of the lower court, if he/she is the shareholder or a member of the company which is party to the dispute, if there are other circumstances that cast doubt on his/her impartiality.
- 35. Possibility to rely on the new legal arguments in the course of proceedings
Due to the incorrect application of substantive law administrative or other act can be challenged at every stage of the proceedings.
- 36. Persons allowed to intervene during the main hearing
A position of a party to the dispute has the person to whom the invalidation of the challenged administrative or other act would be directly on the damage (interested party).
- 37. Existence and role of the representative of the State (“ministère public”) in administrative cases
For the protection of the public interest State prosecutor or other competent body may enter in the administrative dispute.
- 38. Existence of an institution or a person with a role analogous to the French "Commissaire du gouvernement"
There is no.
- 39. Termination of court proceedings before the final judgment
The prosecutor may withdraw the complaint until the court decides. In this case, the court suspends proceedings.
According to the Civil Procedure Code, which is applicable to an administrative procedure, the procedure terminates: when the party dies; when a party loses a civil capacity, and has no attorney in the litigation; when the legal representative of the party dies or ceases his authority to represent and party has an attorney in the litigation; when a party who is a legal person ceases to exist, or if the competent authority finally decides on banning of work; when a petition is filled for insolvency proceedings in cases in which the defendant is a debtor; when due to war or other causes cease the operation of the court; where determined by another law.
- 40. Role of the court registry in serving procedural documents
The court is obliged to forward the claim with all the documents to another party in the proceedings.
- 41. Duty to provide evidence
When decides in a closed session, the court decides on the basis of the facts established in the case file, therefore, the evidences presented in the administrative proceeding.
When deciding on a hearing, decision is based on the facts established at the hearing and on the basis of the facts established in the previous procedure, if they are not inconsistent with the facts of the hearing.
The party proposes implementation of evidences, and the evidences are implemented by the court.
- 42. Form of the hearing
An oral hearing is held in public. The parties are invited at the hearing. The discussion begins with the presentation of the Judge Rapporteur, who presents the facts of the case file. After that, the word is given to the prosecutor to explain the claim, and the defendant's counsel and interested parties to present their arguments.
- 43. Judicial deliberation
Oral hearing is required if the party is requesting in the claim or statement of defense. At a hearing the parties are invited, their attorneys, and possibly expert.
In the deliberation only members of the Panel participate.
- C. JUDGMENT
- 44. Grounds for the judgment
The Law on Administrative dispute determines the content of the judgment. The judgment must, among other things, contain an explanation that will clearly demonstrate the regulation on the basis of which it was adopted and the reasons for such decision.
Unclear judgment or unclear explanation is a serious breach of the procedure, which has the effect of nullifying the judgment.
- 45. Applicable national and international legal norms
Legality of legal acts is estimated on the basis of the Law, and if necessary provisions of the European Convention on human rights.
- 46. Criteria and methods of judicial review
According to the Law on Administrative dispute, if under the law the parties and other participants in the procedure have the obligations, measures stipulated in regulations that are favorable shall be applied to them, if such measures achieves the goal of the law. With this kind of provision the court is required to appreciate in the administrative dispute, whether in the present case it complied with this provision.
In administrative matters where the authority is empowered by law to act in the discretion, the decision must be made within the limits of authority and in accordance with the objective of which is the authorization is given, and the court is obliged to respect in the administrative dispute whether the authority acted in such a manner.
- 47. Distribution of legal costs
In the administrative dispute, each party shall bear its own costs if the court decides in a closed session.
If the court decides at the oral hearing, the losing party is obliged to reimburse the costs of the opposing party.
The court will release the payment of the costs of the proceedings the party which, according to its general property condition is not able to bear the costs without prejudice to the necessary support of themselves and their families.
The court may release a party from paying taxes, if by paying such a tax the means for supporting the party and members of his/her family would be significatly diminished.
On exempting from costs of the proceedings, the court shall decide on the request of the party, which is required to provide a proof of financial standing.
- 48. Composition of the court (single judge or a panel)
In administrative dispute decision is passed by judicial panel (three judges). Decision may not be passed by an individual judge.
- 49. Dissenting opinions
Decision in administrative dispute is passed by mayority. Judge may point a legal position which is opposite to the mayority.
- 50. Public pronouncement and notification of the judgment
The decision is always submitted in writing.
If an oral hearing is conducted, decision must be made within eight days from the date of the oral hearing, a decision has to be made and delivered to the party within 30 days of its adoption.
If no oral hearing is conducted, decision (written) must be delivered to the parties within 30 days of the day of deciding.
- D. EFFECTS AND EXECUTION OF JUDGMENT
- 51. Authority of the judgment. Res judicata, stare decisis
The decision of the administrative dispute has effect only between the parties to the dispute and only applies to that dispute.
However, the court is required that in each identical legal situation acts at the same manner, which means that the court is bounded by the stated legal position set forth in the earlier decision.
Against an administrative act, legality of which the final decision was passed, the same party can not file a lawsuit any more.
- 52. Powers of the court in limiting the effects of judgment in time
Depends on the type of the decision and material law.
- 53. Right to the execution of judgment
The decisions made in the administrative dispute shall be executed by the body competent for enforcement of administrative or other documents.
Administrative enforcement, except for the monetary obligations, is enforced by the authority which decided in the first instance.
Decisions on monetary obligations are executed by the administrative authority in charge of public revenues.
Execution of decsions to real estates and shares in a company or other form of business organization, shall be judicially enforced by the law governing enforcement proceedings
- 54. Recent efforts to reduce the length of court proceedings
The court shall endeavor to carry out the procedure without delay, within a reasonable time with as little cost as possible, and to prevent any abuse of the rights of parties in the proceedings, as expressly required by law.
In order to exercise the right to a hearing within a reasonable time, the Law on the Protection of the right to a trial within a reasonable time was passed. The law provides that a party's right is to sue for damages for violation of the right to trial within a reasonable time.
- E. REMEDIES
- 55. Sharing out of competencies between the lower courts and the supreme courts
All administrative disputes in the first instance are decided by the Administrative Court. Supreme Court decides on extraordinary legal remedy against the decision of the Administrative Court.
- 56. Recourse against judgments
Against the decisions of the Administrative Court right to appeal is not prescribed by law.
Against the decisions of the Administrative Court extraordinary legal remedies can be filed:
- Request for extraordinary review of court decisions
- Request for retrial.
A request for extraordinary review of a court decision can be made for:
- Violation of substantive law;
- Violation of the rules of procedure in administrative dispute that could have an impact on the resolution of the matter.
Deciding on the request for extraordinary review of a court decision the Supreme Court takes care on the existence of substantial violations of the rules of administrative procedure.
In the accuracy of factual finding, Supreme Court should be engaged only if it finds that because of the incorrect application of substantive law state of facts is incompletely established.
On the request for a extraordinery review of the decision, the Supreme Court, as a rule, decides in a closed session and in the panel of three judges. The Supreme Court by a judgment granting a request may revoke or modify the court decision, against which the request has been submitted.
Improper request is rejected by a judgment and unauthorized or untimely request is dismissed by a decision.
On the request for a retrial, Administrative Court is deciding in a panel of five judges.
- F. EMERGENCY AND SUMMARY PROCEEDINGS / APPLICATIONS FOR INTERIM RELIEF
- III – NON-JUDICIAL SETTLEMENT OF ADMINISTRATIVE DISPUTES
- IV – ADMINISTRATION OF JUSTICE AND STATISTIC DATA
- A. FINANCIAL RESOURCES MADE AVAILABLE FOR THE REVIEW OF ADMINISTRATIVE ACTS
- 63. Proportion of the State budget allocated to the administration of justice
The approved budget for the year 2012 for consumer unit "Judiciary" is 19.252.931.22 €
- for gross earnings of courts the amount of € 14,469,947.72 is granted
- for gross earnings of the Administrative Court the amount of € 752,017.88, is granted, as compared to the total approved budget for 2012 makes 3.91%;
2. The approved budget for 2013 amounts to € 20,296,979.73
- for gross earnings of the courts the amount of € 14,444,919.84 is granted
- for gross earnings of the Administrative Court the amount of € 799,707.60 is granted, as a percentage of the approved budget makes 3.94%.
- 64. Total number of magistrates and judges
Total number of judges in Montenegro is 260 judges.
- 65. Percentage of judges assigned to the review of administrative acts
In Administrative Court of Montenegro there are nine judges and the president of the court, and in the administrative department of the Supreme Court of Montenegro there are three judges. Therefore, on the review of administrative acts there is a total number of 13 judges, representing about 0.2%.
In Montenegro there are no magistrates.
- 66. Number of assistants of judges
In the Administrative Court eight advisers are working, and they assist to judges in making decisions, and they are all graduated laywers, who have passed the bar exam.
In the Supreme Court of Montenegro in the administrative department there are two advisors, who are qualified lawyers who passed the bar exam.
- 67. Documentary resources
Administrative court has a library which has necessary literatue for its work.
- 68. Access to information technologies
All decisions and acts of the court are made in JIS (Judicial Information System), thus creating a unified database which can be accessed by all officers of the court.
In addition, we are subscribed to the on-line register of regulations (ing pro) that we need in everyday work.
- 69. Websites of courts and other competent bodies
Web page of the Administrative court is available on the web page of all courts www.sudovi.me.
- B. OTHER STATISTICS
- 70. Number of new applications registered every year
Administrative court of MNE
Supreme court of MNE
- 71. Number of cases heard every year by the courts or other competent bodies
Administrative court in average resoles per year over 3000 cases, upon years as follows:
- 2010. - 3862,
- 2011. - 3673,
- 2012. - 2975,
- 2013 - 3410 cases.
- 72. Number of pending cases
On day 30. 05. 2014., the Administrative Court has 1,752 administrative cases, and the Supreme Court of Montenegro 82 cases of extraordinary review of judicial decision.
- 73. Average time taken between the lodging of a claim and a judgment
According to the Law on Administrative dispute, the court is required to submit a complaint to the defendant authority to answer, and to all interested parties, and to obtain the case file from the defendant's authority. It's common that the defendant authority in the given time limit (30 days) does not submit the case files to the court, and the court is obliged to again request the case files from such authorities. So to complete the case it may take a few months.
In some cases the special law determined even short term for decision- making (eg, register as a voter, labor disputes
|Reference year||Cases lodged||Cases disposed of||Cases pending||Average time to judgment|
The average time is calculated in real time for the cases resolved during the reference year from the date of receipt in the court til the decision, and expressed in days.
The Supreme Court of Montenegro - Administrative Division
|Reference year||Cases lodged||Cases disposed of||Cases pending||Average time to judgment|
The average time is calculated in real time for the cases resolved during the reference year, from the date of receipt in the court til the decision, and expressed in days.
All cases from 2012. were resolved, while for cases from 2013., the obligation to be completed by the end of May this year is determined.
- 74. Percentage and rate of the annulment of administrative acts decisions by the lower courts
- 75. The volume of litigation per field
The Court does not keep records on the number of cases in certain areas. It can be concluded that the cases of all these areas are current in the work of court, but the leading cases are from the area of: spatial planning, finances (taxes, contributions, customs, public procurement), pension and disability and the like.
- C. ECONOMICS OF ADMINISTRATIVE JUSTICE