Judges’ deadlines, deadlines for public administration and associations
In the theory on the activity of the judge in disputes related to exceeding powers, one fundamental principle demands that this activity is ‘beyond time’: the judge examines some past events and objectively seeks whether the administrative act being disputed has been undertaken according to the norm...
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| Format: | Article |
| Language: | English |
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Pravni fakultet Sveučilišta u Splitu
2015-01-01
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| Series: | Zbornik Radova Pravnog Fakulteta u Splitu |
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| Online Access: | http://hrcak.srce.hr/file/203582 |
| _version_ | 1797642434827517952 |
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| author | Daniel Chabanol |
| author_facet | Daniel Chabanol |
| author_sort | Daniel Chabanol |
| collection | DOAJ |
| description | In the theory on the activity of the judge in disputes related to exceeding powers, one fundamental principle demands that this activity is ‘beyond time’: the judge examines some past events and objectively seeks whether the administrative act being disputed has been undertaken according to the norms which should have been applied, which the judge, if necessary, identifies retroactively (emphasising that s/he does not create them). The claim of the illegality of the administrative act leads to its retroactive revocation and to the reconstruction of what should have been in administrative activity.
This theory has not however survived in relation to the principle of reality. The inevitable passing of time, both in public administration and in society resist the ‘beyond time’ aspect of judge activity. This resistance is founded on social expectations and on the principle of legal security. The judge in cases of exceeding powers also responds to the demands on the one hand to become more familiar with the methods of the judge in full adjudication disputes, and on the other hand, to abandon to a certain extent the retroactivity of its intervention. This raises the following question of: is the judge in cases of legality still some kind of ‘general inspector’ of public power or does the judge become a means of appeasing the conflict which occurs in life in general?
Similarly, a judge in a dispute on exceeding powers responding to a concrete social demand accepting that revocation, even retroactive, of an administrative act is not always sufficient to reinstate the principle of a country that adheres to the law. That is why, as a deciding criterion in judicial functioning, the concept of the duration of proceedings has been introduced. So, besides the customary damages and the result of consequences caused by the unreasonable duration of proceedings, it has been concluded that new attention be paid to the duration of proceedings. This is not only in relation to legal norms, but also to court practice. Apart from exigent proceedings presented by Jean Massot, it has been concluded that concern exists that an effective and real reaching of an administrative court decision be approached. Moreover, the new dialectic combines this concern with the concern that a bad judgement not be reached merely due to exigency. This has been evidenced by two extreme examples: the legality of banning a play was decided upon in less than two days, what is more both at first instance and appeal level at the same time, and in advance of the time set for the play. Contrarily, over five months was devoted to examining one of the ‘exigent’ proceedings related to the cessation of feeding and artificial dehydration of a patient (decision dated 11 January 2014, decision by State Council 25 June 2014). |
| first_indexed | 2024-03-11T14:01:14Z |
| format | Article |
| id | doaj.art-66348fadd0bb48f98546c1f18b19b3cb |
| institution | Directory Open Access Journal |
| issn | 0584-9063 1847-0459 |
| language | English |
| last_indexed | 2024-03-11T14:01:14Z |
| publishDate | 2015-01-01 |
| publisher | Pravni fakultet Sveučilišta u Splitu |
| record_format | Article |
| series | Zbornik Radova Pravnog Fakulteta u Splitu |
| spelling | doaj.art-66348fadd0bb48f98546c1f18b19b3cb2023-11-02T04:39:08ZengPravni fakultet Sveučilišta u SplituZbornik Radova Pravnog Fakulteta u Splitu0584-90631847-04592015-01-015215159Judges’ deadlines, deadlines for public administration and associationsDaniel ChabanolIn the theory on the activity of the judge in disputes related to exceeding powers, one fundamental principle demands that this activity is ‘beyond time’: the judge examines some past events and objectively seeks whether the administrative act being disputed has been undertaken according to the norms which should have been applied, which the judge, if necessary, identifies retroactively (emphasising that s/he does not create them). The claim of the illegality of the administrative act leads to its retroactive revocation and to the reconstruction of what should have been in administrative activity. This theory has not however survived in relation to the principle of reality. The inevitable passing of time, both in public administration and in society resist the ‘beyond time’ aspect of judge activity. This resistance is founded on social expectations and on the principle of legal security. The judge in cases of exceeding powers also responds to the demands on the one hand to become more familiar with the methods of the judge in full adjudication disputes, and on the other hand, to abandon to a certain extent the retroactivity of its intervention. This raises the following question of: is the judge in cases of legality still some kind of ‘general inspector’ of public power or does the judge become a means of appeasing the conflict which occurs in life in general? Similarly, a judge in a dispute on exceeding powers responding to a concrete social demand accepting that revocation, even retroactive, of an administrative act is not always sufficient to reinstate the principle of a country that adheres to the law. That is why, as a deciding criterion in judicial functioning, the concept of the duration of proceedings has been introduced. So, besides the customary damages and the result of consequences caused by the unreasonable duration of proceedings, it has been concluded that new attention be paid to the duration of proceedings. This is not only in relation to legal norms, but also to court practice. Apart from exigent proceedings presented by Jean Massot, it has been concluded that concern exists that an effective and real reaching of an administrative court decision be approached. Moreover, the new dialectic combines this concern with the concern that a bad judgement not be reached merely due to exigency. This has been evidenced by two extreme examples: the legality of banning a play was decided upon in less than two days, what is more both at first instance and appeal level at the same time, and in advance of the time set for the play. Contrarily, over five months was devoted to examining one of the ‘exigent’ proceedings related to the cessation of feeding and artificial dehydration of a patient (decision dated 11 January 2014, decision by State Council 25 June 2014).http://hrcak.srce.hr/file/203582beyond time judgingtheorypractice Council of State |
| spellingShingle | Daniel Chabanol Judges’ deadlines, deadlines for public administration and associations Zbornik Radova Pravnog Fakulteta u Splitu beyond time judging theory practice Council of State |
| title | Judges’ deadlines, deadlines for public administration and associations |
| title_full | Judges’ deadlines, deadlines for public administration and associations |
| title_fullStr | Judges’ deadlines, deadlines for public administration and associations |
| title_full_unstemmed | Judges’ deadlines, deadlines for public administration and associations |
| title_short | Judges’ deadlines, deadlines for public administration and associations |
| title_sort | judges deadlines deadlines for public administration and associations |
| topic | beyond time judging theory practice Council of State |
| url | http://hrcak.srce.hr/file/203582 |
| work_keys_str_mv | AT danielchabanol judgesdeadlinesdeadlinesforpublicadministrationandassociations |