Abstract
The right to an oral public hearing is covered by the right to a fair trial as a right guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as by the Constitution of the Republic of Serbia. In this sense, the Law on Administrative Disputes prescribes a rule for the court to establish the facts at an oral public hearing. This law prescribes exceptions to the rule, as well as cases in which the court will "always" and in which it is "obliged" to hold an oral public hearing. Analyzing the legal provisions, with reference to the relevant administrative and constitutional caselaw, and considering the present organization and capacity of the administrative judiciary, the author pointed to certain shortcomings of legislative solutions and administrative judicial decisions, and based on the conclusions drawn, tried to offer possible solutions so that, when it comes to holding a hearing before a court, a higher degree of fairness of trial could be achieved.
Highlights
The previously applicable Law on Administrative Disputes1 prescribed that the court “as a rule” resolves a dispute on the basis of the facts established in an administrative proceedings (Article 38)
The right to an oral public hearing is covered by the right to a fair trial as a right guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as by the Constitution of the Republic of Serbia
Such determination by the legislator is a consequence of the need to implement European standards of fairness into positive legislation, but it should be mentioned that when ratifying the European Convention for the Protection of Human Rights and Fundamental Freedoms4 the reserve was placed precisely with regard to the obligation to hold an oral hearing in an administrative dispute, which was justified by the insufficient capacity of the administrative judiciary
Summary
The previously applicable Law on Administrative Disputes prescribed that the court “as a rule” resolves a dispute on the basis of the facts established in an administrative proceedings (Article 38). Deciding on the basis of the facts established at the oral public hearing represents one of the elements envisaged by the effective ZUS3 related to the fairness of trial in administrative dispute (alongside the decision of the court on the basis of law and decision of the court within a reasonable time). Such determination by the legislator is a consequence of the need to implement European standards of fairness into positive legislation, but it should be mentioned that when ratifying the European Convention for the Protection of Human Rights and Fundamental Freedoms the reserve was placed precisely with regard to the obligation to hold an oral hearing in an administrative dispute, which was justified by the insufficient capacity of the administrative judiciary.. In the paper we have tried to “check” through the analysis of legal provisions and the presentation of the administrative practice in recent times whether in the meantime to which extent the changes occurred with regard to the publicity of the administrative proceedings
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