Challenges and perspectives of administrative judiciary in the Republic of North Macedonia

• Author: Jeton Shasivari
• Position: Associate professor of Constitutional and Administrative Law, Faculty of Law, South East European University, Tetova, Republic of North Macedonia
• Pages: 60-76

Challenges and perspectives of administrative judiciary

in the Republic of North Macedonia

Associate professor Jeton SHASIVARI1

Abstract

The development of administrative judiciary in the Republic of North Macedonia

went through various phases after its independence in 1991. 16 years after its

independence, in late 2007 the Administrative Court was established as one of the holders

of the judiciary in judicial system. Before the establishment of this court, the administrative

dispute was under the jurisdiction of the Supreme Court. The Administrative Court appears

as a guarantor for ex ercising the rights guaranteed by the Constitution and the laws before

the administrative bodies, which provide court protection in the event of an unlawful

conduct by the administration. For this reason, administrative justice plays a key role in the

lives of citizens who seek it when they consider that state authorities are preventing the

enjoyment of a constitutional or legal right, or that they are imposing an obligation outside

the legal rules. With this paper the author by explaining t he process of developmen t of the

administrative judiciary using: normative legal method, comparative legal method,

systematic and objective interpretative methods, will focus on the specific analysis of

ineffectiveness of administrative justice in the practice, which is due, first of all, to the lack

of a mechanism for implementing the judgments of the Administrative Court.

Keywords: administrative bodies, administrative dispute, a dministrative justice,

administrative case law, full dispute, dispute for annulment of administrative act.

JEL Classification: K23, K41

1. Introduction

Administrative dispute, as a form of direct judicial control over the

administration, is one of the most important and most complex institutes of

administrative law. It is about the most important form of external legal and

judicial control of the legality and the work of the administration. In strait aspect,

according to the principle of separation of powers, the administrative dispute is not

in accordance with this principle. However, as in other situations in law, real life is

superior to the legal logical constructions; therefore, the appearance of the institute

of the administrative dispute marks the triumph of life over the law. The

administrative dispute is not an legal institute that has roots from the medieval

legal opinion and practice, but it’s a great legal invention of the contemporary law,

because it appears as a result of essential deficiencies of various kinds of

administrative control over the administration under the principle of hierarchy, in

1 Jeton Shasivari – Associate professor of Constitutional and Administrative Law, Faculty of Law,

South East European University, Tetova, Republic of North Macedonia, j.shasivari@seeu.edu.mk.

Juridical Tribune Volume 9, Special Issue, October 2019 61

which case they do not guarantee sufficiently implementation of the principle of

legality in administrative activity and proper protection of legal rights of citizens

from the illegal actions and decisions of the administration, seeking and finding

proper legal protection elsewhere, i.e. in courts as a separate and independent

organs from the administration. Therefore, such circumstances led to the view

according to which the courts are really only able to assess the legal side of the

administration, and examine and decide on what the administration has acted and

decided according to a law or not. In this sense, the control of legality could not be

entrusted to parliaments, because they are even more governed by political criteria

than the administration itself. Therefore, in the conditions of the separation of

powers, this control is entrusted to the courts, since they are independent organs,

which are competent to assess the legality of the administrative acts and their very

function, gives full guarantee for the objectivity of this control, and on the other

hand, the administrative authority is avoided, to be, at the same time as a judge and

a party2.

There are different criteria for determining the concept of administrative

dispute. Most authors define the concept of an administrative dispute from the

standpoint of their national law, relying mainly on one criterion, while ignoring

others, which, however, may be more appropriate to another legal system. In

administrative legal theory, there is no a unique point of view to define the concept

of administrative dispute, so there are two meanings, including: formal and

material meaning on administrative dispute. The formal meaning is based on

formal legal features, such as jurisdiction of the body that settles an administrative

dispute, thus an administrative dispute is settled by the special courts; the

procedure in which an administrative dispute is settled, thus this dispute is settled

in judicial administrative procedure; the participants in the administrative dispute,

thus as one of the mandatory participants in this dispute always appears the

administration; the nature of the legal provisions to be decided in this dispute, etc.

The material meaning is based on material legal features, where previously is

defined the notion of dispute, in which case, there are two views, the English point

of view according to which the dispute exists only when there are two parties with

two contrasting requests; and the French point of view according to which such

dispute presents the situation where there is opposition to one request. Considering

the abovementioned, it should be noted that the full meaning of an administrative

dispute is determined by specifying its object and purpose. So, the administrative

dispute means the dispute over the legality of the administrative act, which is

created between a party and the competent authority after completion of the general

administrative procedure, the resolution of which is under the jurisdiction of the

2 Наум Гризо, Симеон Гелевски, Борче Давитковски, Ана Павловска-Данева,

Административно право, Правен Факултет “Јустинијан Први”- Скопје (Naum Grizo, Simeon

Gelevski, Borce Davitkovski, Ana Pavlovska-Daneva, Administrative Law, Faculty of Law

"Iustinianus Primus" – Skopje), 2008, p. 499-500.