Administrative Court Research Articles

IMPLEMENTASI UNDANG-UNDANG NOMOR 30 TAHUN 2014 TENTANG ADMINISTRASI PEMERINTAH: KERANGKA KELEMBAGAAN UNTUK PENERAPAN PUTUSAN PERSIDANGAN

The state administrative law is created to improve the performance of the state administrative process. For the people, it gives a reassurance that every decision that has been made should be designed according to the prevailing procedure and regulation. For the state apparatus, this law provides protection from criminal charges for the policy that has been made according to the prevailing procedure and regulation. Hence, in principle this law is made to give legal certainty and a peace of mind for both parties. However in its implementation, the application of the state administrative law has not been optimal since the implementor of control of the Administrative Court’s decision is yet to be institutionalized. The purpose of this research is to give recommendation on the possibble institutional arrangement for the implementor of control of the Administrative Court’s decision. The method used in this research is by using a qualitative approach with the socio-legal method that is based on literature studu that is analyzed by using the content analysis technique. The results of this research shows that there are several institution within the state administrative that have the potential to be the implementor of control of the Administrative Court’s decision and also finds the possible institutional arrangement for its implementation.

Definition of Legal Norms by Administrative Court

The court system is independent and it is exercised by the Constitutional Court of Georgia and the General Courts of Georgia.[1] As it is well known, the function of the court is to decide the disputed issue in favor of the side towards which the scales of law and justice lean, and not only to control the relevant systems, but also to promote their formation and development[2]. Court independence is a prerequisite for the fundamental guarantee of the rule of law and due process. A judge must inspire public confidence in the independence, fairness and impartiality of the law.[3] The purpose of this article is to determine the peculiarity of the interpretation of the administrative norm by the court. A parallel will be made with the approaches established in the European experience and literature. [1] Constitution of Georgia, Art. 59. [2] Bator M., What is wrong with Supreme Court, University of Pittsburgh Law Review, Vol. 51, Issue 3, 1990, 697. [3] Ethics of Judge <http://hcoj.gov.ge/ka/> [06.08.2023].

The Concept of the Mechanism of Competitive State Policy at the Regional Level

The mechanism of formation and implementation of competitive state policy at the regional level has been improved based on the generalization of a set of elements, namely: subject (public administration bodies); goal (effective protection of competition and development of a competitive environment to ensure sustainable economic development of the regional economy); means (system of antimonopoly legislation (AMZ), program documents, finances (benefits and preferences, etc.), information on the competitive environment); form (protective - mainly direct regulation; active - mainly indirect influence); methods (protective, active, indirect); tools (legal and economic regulation); model (hard, soft); object (competitive environment, market structure, competitive relations, market subjects, activities of public administration bodies). It was determined that competitive policy at the regional level is interdependent with other elements of the national economic policy system of the state. At the same time, modern competitive policy at the regional level can rightfully be considered an independent area of activity of state authorities. Value goals of competitive policy at the regional level are considered. Achieving the goal of competitive policy at the regional level involves solving the following tasks: effective implementation of control functions to identify and stop anti-competitive activities of business entities and public administration bodies; formation of a competitive environment and improvement of its condition due to the reduction of unjustified barriers to entry and doing business in the market, as well as the development of infrastructure to ensure access to it by interested market participants; creation of conditions for the development of competitive business entities; implementation of competition development measures in regions and individual areas. It was concluded that competitive policy at the regional level in a general sense includes two key directions in its structure: protection of competition (defensive competitive policy) and development of competition (active competitive policy). In modern conditions, competition advocacy is understood as a complex of actions of the subjects of competition policy, aimed at strengthening the competitive environment by using mechanisms that are not exclusively elements of the system of coercion to comply with the established rules for the application of sanctions based on administrative procedures and court decisions. It was revealed that the state policy in the field of competition protection and development is interdependent and interconnected with other elements of the country's national economic policy system. Based on the generalization of the set of elements of competitive state policy at the regional level, the mechanism of its formation and implementation is disclosed.

Access to Czech Administrative Courts – Bottlenecks in Access to Justice

The right of access to a court is subject to certain limitations. While a number of these limitations may be created deliberately, in line with the function of the administrative justice system (e.g. restrictions on review by the higher courts, others may be more or less unintended consequences of the design of the administrative justice system (or application of relevant rules or case law). The article attempts to present possible forms of these limitations and tries to outline some of the main “bottlenecks” in the access to judicial protection in the context of Czech administrative justice. These limitations can be regarded mainly as formal and informal, and their recognition can result in increasing the efficiency of the functioning of judicial protection, in particular by simplifying procedural regulation in relation to the ongoing societal and technical changes.

Position and Legal Certainty in the Decision of the Honorary Board of Election Organizers (After the Constitutional Court Decision Number 32/PUU-XIX/2021)

The purpose of this study is to find out the legal regulations regarding legal certainty in the decision of the honorary board of election organizers based on the decision of the Constitutional Court Decision Number 32/PUU-XIX/2021). The method used in this study is the Normative Juridical approach. Juridical-normative research was chosen because it affirms the existence of ethical norms and legal norms as part of the norm system that applies in society. The results of the study concluded that the Urgency of DKPP is a vital and significant institution to deal with violations of the Election Organizer's code of ethics and is a unified function of the Election Organizer; The nature of the legal certainty of the decision of the Election Organizing Honor Board (DKPP) after the Constitutional Court decision Number 32/PUU-XIX/2021 is not recognized and confirms that the DKPP is not a judicial institution, so the DKPP decision is a decision of a State Administration official who can be the object of a lawsuit at the State Administrative Court; and it is necessary to establish an ethical court through law, not only limited to DKPP. where enforcement is carried out through an independent, impartial, and open judicial process, namely the Court of Law for legal matters, and the Court of Ethics for ethical issues.

The “International” Rule of Law in the Polish Administrative Court’s Jurisprudence

This study analyses the jurisprudence of Polish administrative courts, referring to the concept of the “international” rule of law, and thus, to the concept interpreted by the courts based on sources of law binding on Poland adopted at the supranational level (international agreements and law created by the European Union). The following jurisprudence issues emerge: 1) international and EU legal bases for the protection of the rule of law and the resulting meaning of this concept; 2) international versus national approach to the rule of law; 3) the rule of law – principle or value; 4) normative sources (national and supranational) of the general obligation of administrative courts to implement the international rule of law; 5) the order to implement it as an element determining the jurisdiction of administrative courts and the pattern of control exercised by these courts. In this context, it was stated, inter alia, that according to the jurisprudence of administrative courts, the ‘international’ rule of law primarily implies effective judicial protection of individual rights, guaranteed by independent courts, impartial and irremovable judges who have been duly appointed.

The purpose of administrative proceedings: protection against violations by public authorities or ensuring the correct application of law by them

The pertinence of the matter of correct understanding of the purpose of administrative proceedings in Ukraine is caused by the fact that the trends in the development of the practice of interpretation and application of the Ukrainian legislation on administrative litigation, as well as the shifts in scientific studies of the principles and rules of administrative proceedings, indicate that there are fundamental discrepancies in the understanding of the purpose of administrative proceedings among the scientific community and administrative courts, which lead to the distortion of the outcomes of the functioning of the administrative justice system in the practical dimension. The purpose of the article is to determine the purpose of administrative proceedings in the light of its nature and social purpose. The dialectical method of scientific research was used, making it possible to consider the purpose of administrative proceedings in view of its continuous development in the theory and practice of administrative litigation in its unity and contradictions. The author as well resorted to normative-dogmatic method, serving as a tool for understanding the purpose of administrative proceedings in accordance with its legislative definition. As a result of the study it was determined that the point of view, according to which the activity of administrative courts should be directed not only towards the protection of the rights and legitimate interests of natural and legal persons in the public law domain from violations by public authorities, but also towards the judicial review of proper satisfaction of the public interest in the activities of public authorities with regard to the performance of the public powers entrusted to them, by establishing the comprehensive truth within the framework of the case and by ensuring lawfulness in disputed legal relations through the correct definition of the rights and obligations of their participants. Moreover, the author maintains that by collecting information and documents to determine those decision, action or inaction of the public authority, which should have been made (committed) outside the context of protecting the rights and legitimate interests of the relevant private individuals, the administrative court takes over the governmental executive functions of the public authorities, protecting the relevant public interest and becoming part of the executive branch of power. It was, furthermore, noted that even an administrative lawsuit filed by a public authority against natural or legal person is not deemed to be a way to protect the rights and interests of the respective public authority, as the administrative justice has a different task.

A person VS the state: studying access to justice

The purpose of this article is to expand the access to justice research agenda by focusing on a person’s identity in dispute with state authority. Keeping in mind that everyone should be able to challenge governmental actions and decisions adverse to their rights or interests, in- depth research on access to justice in “a person vs the state” disputes which takes place in courts of administrative jurisdiction, is needed. The methodology of the research acknowledges the unavailability of statistical data about the litigants, and the finding of the study which shows that different groups defended their rights with varying degrees of success. Thus, an innovative approach to the analysis of the Supreme Court judgements was used. It envisions leaving aside legal issues such as statutory interpretation, and instead examines the judgements through the lens of litigant’s characteristics. The findings show that the judgements of the Administrative Court of Cassation within the Supreme Court reflect the diversity of characteristics of persons who apply to administrative courts, including categories directly named in the Constitution of Ukraine as well as not specifically mentioned in it, such as war veterans, IDPs, etc. The financial status of the litigants varies from low-income to quite wealthy, and a certain category of plaintiff is not limited to one type of specific legal problem. For example, “property owners” challenge the decisions of state agencies in a wide range of areas: taxation, urban planning, social benefits, freedom of movements, etc. However, the vast majority of “a person vs the state” disputes concern the refusal to provide some benefits rather than action against a violation of human rights and fundamental freedoms. This can be seen as a Soviet legacy to perceive the state as a welfare provider. Following the people-centered approach to access to justice is essential to reorient the court statistics from “cases and files” to litigants and their characteristics which allow to relay on data to find out whether there is any connection between some features (characteristics) of litigants and types of lawsuits.

Supremacy and Primacy: Hierarchical Relationships Between the Polish and EU Legal Systems and Their Guardians

European Union (EU) law and Polish national law are two separate legal systems. However, they function together within the framework of the Law of the Republic of Poland, in line with the meaning of Article 8(1) of the Constitution and have legal effects within the territory of the Polish State. Also, their norms are directed at the same addresses and operate within the same Polish territory. This results in the possibility of collision, both at the levels of the binding force (dispute over the hierarchy of provisions) and the application of law (dispute over the primacy of application). Each system has instruments aimed at solving collisions. Each also has an organ (organs) guarding the system. The activity of the said organ is to guarantee internal coherence and the proper position in the event of a collision with the other system. This analysis presents relations between those systems at the normative level and among the guardians of those systems. The first case concerns the definition and explanation of the substance of legal instruments solving collisions at the level of the Constitution and EU Treaties, and the indication of existing similarities and disparities, and as a result, the indication of the spheres of potential collision. In the second context, the text discusses the legal position of the guardians of the systems, that is, in the case of national law – the position of the Constitutional Tribunal, the Supreme Court, and administrative courts, and in the case of EU law – the position of the Court of Justice of the EU (CJEU). It also indicates the field of mutual convergence and disparity, and defines the applied legal tools. The analysis embraces constitutional identity as a boundary for national concessions to the primacy of EU law.

The Relationship of the Supreme Courts of the Slovak Republic with the Court of Justice of the European Union

The judicial authorities of the Member States of the European Union have an important duty to ensure the full effect of EU legal norms at the national level, as they are obliged to fully apply EU law and to protect the individual rights conferred by that law. This article focuses on the relationship among the highest judicial bodies of the Slovak Republic, namely the Constitutional Court, the Supreme Court, and the Supreme Administrative Court, with the Court of Justice of the European Union, which ensures the uniform interpretation and application of Union law. In this context, this article examines the extent to which the Slovak Supreme Court uses the preliminary ruling procedure, as well as its selected decisions, to consider the extent to which the requirements of Union law can be examined, resulting from the case-law of the Court of Justice in accordance with the principle of sincere cooperation enshrined in Article 4(3) of the Treaty on the European Union. It also examines the cooperation between the general courts of the Slovak Republic and the Court of Justice of the European Union in the context of the preliminary ruling procedure, and how the Slovak constitutional order meets the requirements of Union law.

Glosa do wyroku Naczelnego Sądu Administracyjnego z dnia 8 grudnia 2022 r., II GSK 1225/19 (krytyczna)

Gloss to the judgment of the Polish Supreme Administrative Court of December 8, 2022, case file no. II GSK 1225/19 (critical) This gloss concerns the judgment of the Polish Supreme Administrative Court sustaining the verdict of the Voivod-ship Administrative Court [Polish: Wojewódzki Sąd Administracyjny, WSA] in Warsaw on the decision regarding registration on the list of attorneys-at-law. The court dismissed two cassation appeals filed by the Board of the National Bar Council of Attorneys-at-Law and the Minister of Justice against the judgment of the Voivodship Ad-ministrative Court in Warsaw of May 29, 2019, case file no. VI SA/Wa 2395/18 in a case involving a complaint by J. N. against the decision of the Minister of Justice of October 16, 2018. no. DZP-III-6110-485/18/3 on refusal of entry to the list of attorneys-at-law.

Administrative silence as the challenge in regulation of administrative proceedings. Best practices and successful measures adopted by selected EU countries in the context of Ukrainian law "on administrative procedure"

The issue of administrative silence is a significant challenge not only for the countries undergoing structural legal reforms, but also in established democracies with stable rule of law systems. Administrative inaction or delayed activity pose serious problems for the citizens, impact their individual rights, but also questions the overall effectiveness of public administration. In general, two models of addressing this case of maladministration are adopted: the negative (where silence means tacit rejection) and positive (where silence means approval). However, in practice of many countries, the solutions are mixed and much more complex. The effective way of dealing with administrative silence seems to be a matter of practice of public administration bodies, good cooperation with administrative courts, and respectful approach to individual rights of the citizens. Ukraine is currently undergoing a major reform of administrative procedure. The newly adopted and currently implemented Law on Administrative Procedure (LAP) provides a comprehensive approach to regulation of administrative proceedings and addresses many challenges relating to the operation of public administration. It is important to test the new solutions and observe how they function in practice, as well as to identify potential weaknesses and possibilities for improvement. Administrative silence, as a substantial challenge to the proper functioning of public administration, needs to be effectively addressed by the legal norms and practice, possibly with the inspiration of the good practices from the other European countries.

The Principle of Guaranteeing Effective Means of Legal Protection: European and National Concept

The relevance of the research is determined by the novelty of the topic, taking into account the Law of Ukraine "On Administrative Procedure". The purpose of the study is to characterize the category "guaranteeing effective legal remedies" in the national administrative legal doctrine, taking into account the European standards for the protection of the rights, freedoms and interests of the individual, and to determine the directions of research into the problems of challenging administrative acts in public administration. The research uses many methods, including general scientific and special legal ones: comparative legal, systemic structural, analysis, synthesis, and others, which makes it possible to systematically and consistently approach the solution of scientific problems, to investigate different positions of scientists, the provisions of legal acts and formulate appropriate conclusions. An analysis of the essence of the principle of guaranteeing effective legal remedies was carried out. Two components of the principle are distinguished: 1) the right of a person to appeal the decision, actions or inaction of an administrative body; 2) the duty of an administrative body to inform a person about the method, procedure and terms of filing a complaint against an administrative act that negatively affects his rights, freedom or legitimate interest. This opens the way for in-depth scientific understanding of this topic. In the process of analysis, a number of problematic moments related to the incorrect use of the provisions of this principle were revealed. It is emphasized that the implementation of the principle will affect: a) a change in the format of interaction between individuals and administrative bodies in the direction of raising the standards of such communication; b) reducing the burden on administrative courts, etc.On the basis of the conducted research, conclusions were formulated and recommendations were made, namely, that the principle of guaranteeing effective means of legal protection: 1) is based on EU standards, taking into account national specificities; 2) is an additional mechanism for the protection of persons; 3) is implemented mainly at the level of the institute of administrative appeal, which has certain advantages compared to judicial appeal. Therefore, in the context of the transformation of national legislation, there is a need to conduct additional research on the specifics of the implementation of this principle, taking into account the realities of today.

Administrative Procedure under the Legislation of Ukraine and Certain Foreign Countries (Comparative Legal Study)

The relevance of the research topic is due to the need to analyse the experience of regulatory definition of administrative procedures in foreign countries. It characterizes models of systematizing procedural legislation in certain developed countries worldwide and in Ukraine. Emphasis is placed on Ukraine adopting a model of systematizing administrative procedural legislation that involves the adoption of a general act on administrative procedure with the preservation of the priority of special legislation. This approach aligns with the recommendations of the institutions of the Council of Europe and the European Union, particularly Recommendation CM/Rec(2007)7 of the Committee of Ministers of the Council of Europe of June 20, 2007, to member states on good administration, and the European Parliament Resolution of January 15, 2013, with recommendations from the Commission on Administrative Procedure Law in the European Union. The latter document envisages that the general act on administrative procedure should contain a universal set of principles and outline a procedure applicable as de minimis provisions when there is no lex specialis. The purpose of the article is to reveal the peculiarities of legal regulation of administrative procedures under the laws of foreign countries. It is argued that updated legislation should include referral norms that clearly address the legal practitioner (other subjects endowed with administrative-procedural legal status) to a specific procedure defined by sectoral legislation. This is particularly relevant to cases handled by administrative authorities on their own initiative. The study uses the comparative legal method to establish the common and distinctive features of legal regulation of administrative and procedural legislation of foreign countries. The author examines the peculiarities of legal regulation of administrative procedures in certain European countries. It is noted that the implementation of legislation on administrative procedure in Ukraine should be carried out using the existing experience of countries where the relevant changes have already been implemented. It is emphasized that in the future, attention should be focused on the formation of a homogeneous national law enforcement practice, which is determined by a unified approach to the interpretation of procedural law. Based on the study, the author formulates the following conclusions and makes recommendations: at the initial stage, it is worthwhile to establish communication between representatives (officials) of administrative bodies and judges of administrative courts with a view to taking a number of measures to ensure effective implementation of domestic administrative procedure legislation; to ensure data exchange within the administration and to identify practical problems which may arise in the process of harmonization of the entire array of legal acts around the basic Law of Ukraine "On Administrative Procedure".

THE JUDICIAL RULINGS PERTAINING TO THE HAGIA SOPHIA IN TURKEY AND THE BABRI MOSQUE IN INDIA: An Analysis

<p><strong>Abstract: </strong>On November 9, 2019, the Supreme Court of India issued a ruling allowing for the construction of a temple dedicated to the Hindu deity Ram on the site of Babri Masjid in Ayodhya, Uttara Pradesh. Similarly, on July 10, 2020, the State of Council, the highest administrative court in Turkey, issued an order to convert the status of Istanbul's Hagia Sophia from a museum back into a mosque. The court's decision in both nations has been regarded as a transformative political development within their respective contexts. This decision has garnered praise from certain individuals, while also attracting criticism from others, both domestically and internationally. This article is thematically based, library-focused, and qualitative. The article examines and evaluates both cases based on the existing evidence pertaining to the historical structures, and endeavours to propose the most persuasive perspective to adopt in such situations. The study's findings suggest that the judicial decision under scrutiny exhibits a greater inclination towards political considerations rather than rational ones.</p><p><strong>Keywords:</strong> Hagia Sophia, Babri Mosque, Judicial Rulings, Recep Tayyip Erdogan, Narendra Modi</p>

Paradigm for the Application of the Dominus Litis Principle in the Indonesian State Administrative Court

In the case of efforts to establish a just rule of law state, judges need to actively find the material truth desired by the state administrative court and the Judicial Powers Act, including its practice in dispute resolution. Their activeness really helps people to get justice, namely following the duties of a judge. Among them are examining, deciding and resolving disputes, especially in examining State Administrative Decisions issued by State Institutions or Officials, which are contrary to applicable laws and regulations and general principles of good governance.

Penerapan Asas Nebis in Idem yang Diajukan di Peradilan Berbeda Berdasarkan Asas Contante Justitie

This research aims to analyze the application of the principle of nebis in idem in the handling of civil case Number 287/Pdt.G/2023/PA.Skh. which corresponds to the principle of contante Justitie and to know and analyze the handling of cases carried out by judges who examine, hear, and decide cases handled by the Sukoharjo Religious Court, by looking at the considerations of judges in applying the principle of nebis in idem. This research is normative legal research, using secondary data which is processed using qualitative techniques. The results of this study indicate that: (1) the handling of civil case Number 287/Pdt.G/2023/PA.Skh. in its decision is appropriate and has applied the principle of nebis in idem properly, because the elements of nebis in idem as required in the Civil Code have cumulatively been fulfilled; (2) the considerations given by the panel of judges in giving the decision are appropriate and correct based on applicable legal principles. (3) cases containing elements of nebis in idem must be filed an exception and an exception can only be filed in the first answer along with a rebuttal to the subject matter. It is recommended that in the future a dismissal process can be carried out before cases related to nebis in idem are examined and tried like the mechanism in the state administrative court, in order to provide legal certainty for justice seekers as well as implement the principles of fast, simple, and light costs.

Application of Administrative Sanctions in Decisions on State Administrative Cases at the State Administrative Court

In carrying out its duties and authority, it is felt that the State Administrative Court (PTUN) in Indonesia has not met the expectations of the people seeking justice. This journal discusses the application of administrative sanctions, the obstacles they face and the concept of effective application of administrative sanctions in TUN case decisions at the Semarang PTUN. The research method is socio legal. The results of the research are first, the application of administrative sanctions in TUN case decisions at the Semarang PTUN is not optimal. Second, the obstacles are low awareness of TUN Officials, lack of active participation from the Defendant and lack of supervision, there are no regulations regarding a special budget. Third, the concept of effective implementation is that there is a legal basis for the PTUN to include administrative sanctions in its decision, revise the provisions of the relevant articles, there needs to be a clear commitment from the TUN Agency or Officials and their superiors, the need for supervision.

Methods of protection and discretionary powers in administrative jurisdiction: problems of law enforcement

The article is devoted to the problems of the court’s discretionary powers in selected defenses that do not inform the law and are more effective. The article analyzes the peculiarities of the court going beyond the legal requirements and choosing other methods of protection than those requested by the requester. The purpose of the article is to explain the content and inter- judicial discretion in the context of the principle of the rule of law when deciding on the court’s choice of other ways of protecting rights and interests that are not legally binding and that are more effective.
 The article draws attention to the fact that the actual issue of judicial practice remains the problem of choosing methods of protection other than those requested by the person whose right has been violated. At the same time, it should be noted that the CAS of Ukraine and other legislation do not establish such limits. It is noted that when going beyond the limits of claims and choosing other methods of protection, the court must comply with the principles and international standards of judicial proceedings, the requirements of material and procedural law, the specifics of a specific case, put forward claims and their justification, administrative-legal status and powers of response, position the plaintiff , moral norms and other factors. At the same time, the administrative court must be guided by the principle of the rule of law, proceed from the goals and objectives of administrative proceedings, use judicial practice, reflect the analogy of the law or the analogy of the law. To conclude that the methods of protection of the subjective rights and interests of individuals in administrative proceedings are differentiated in the material- legal (consolidation in the law) and procedural component (judicial discretion). At the same time, applying judicial discretion and making discretionary decisions of the judge, guided by the rule of law, his reasoned choice between alternative types of ways to protect the violated subjective right or interest.

Legal Standing and Organization's Right to Sue in Cases of Onrechtmatige Overheidsdaad (Unlawful Government Acts) After the Implementation of Law No. 30 of 2014

The government as a legal subject that has the authority to carry out legal acts can actually be tested whether there is no authority approved by the State Administrative Court. This trial can of course be triggered by demands from certain parties who feel disadvantaged by the Government's actions. This research will examine the legal position and right to sue an organization in the Onrechtmatige Overheidsdaad Dispute. This research is normative juridical legal research. This research analyzes the legal position and right to sue the community regarding the defense of the Onrechtmatige Overheidsdaad. The research results concluded three things; First, organizations have sufficient requirements to file a lawsuit because their right to sue is regulated in Law Number 32 of 2009 concerning Environmental Protection and Management (UU 32/2009), and other regulations. Second, UUAP No. 30 of 2016 also regulates the authority to decide whether or not there are elements of authority exercised by Government Officials. This means that Law Number 30 of 2014 provides space for the public to file a lawsuit if there is a rejection of a permit permitted by the government. Third, there is a need to add the word 'organization' and add 'organizational requirements for filing a lawsuit' in UUAP No. 30 of 2014 explicitly.