11 Aug Serbian citizens without protection from the inefficient conduct of administrative bodies
The A11 Initiative submitted an initiative to amend the Law on the Protection of the Right to Trial within a Reasonable Time to the Department for the Protection of the Right to Trial within a Reasonable Time of the Higher Court of Cassation in the aim of ensuring protection from inefficient conduct of administrative bodies.
Since the Law on the Protection of the Right to Trial within a Reasonable Time came into effect, there is no mechanism in Serbia to protect the right to trial within a reasonable time in front of administrative bodies, even though such cases could be of existential importance for the involved parties. By regulating the way in which the right to a trial within a reasonable time is protected and defining which persons can file an objection in order to expedite the procedure, the Law only included parties in court proceedings, while those in administrative proceedings remained outside the reach of law.
It is unacceptable to exclude the right to trial within a reasonable time in front of administrative bodies because of the consequences that could arise if domestic legislation does not ensure efficient legal remedies in instances of inefficient procedures of administrative bodies. The European Court of Human Rights has in its practice taken the position that violations of the right to trial within a reasonable time can also arise in cases in front of administrative bodies, and that it is necessary to ensure appropriate legal remedies to expedite the proceedings in these instances as well, not only in cases of administrative…
One can simply take a look at the European Court ruling from 2017 in the case of Stanka Mirković and others v Montenegro, in which it was established that a control request (a legal remedy prescribed by the Law on the Protection of the Right to Trial within a Reasonable Time of Montenegro) cannot be considered an efficient legal remedy for ongoing proceedings in front of various administrative bodies. Considering that the mentioned remedy is the equivalent of the objection to the proceeding present in legislation of the Republic of Serbia, it is evident that the current situation in domestic law and the non-existence of a legal remedy aimed at the protection of the rights to trial within a reasonable time is not compliant with the practice of the European Court of Human Rights. There were other cases in front of the said Court related to the necessity to ensure the right to trial within a reasonable time in front of administrative proceedings, such as that of Smoje v Croatia.
Consequences that arise from the lack of a protection mechanism in cases of protracted administrative proceedings
The proceedings under the constitutional appeal of J.S also illustrate the consequences of the lack of measures of protection in excessively lengthy administrative cases. In those proceedings, the competent social welfare center – as the first instance body – rejected or dismissed the request for family financial support on seven occasions, while the second instance body/appellate body sent the case back for re-trial seven times as well. At the moment when a decision was reached on the constitutional appeal of J.S., the proceedings regarding her request had been ongoing for five years, and the final decision on the request had not been reached. The Constitutional Court established that a violation of the right to trial within a reasonable time had occurred. Although the drastic inefficiency of competent authorities is clear in this case, and even though this issue was of existential importance for the involved party, citizens that found themselves in the same position as J.S. after the Law on the Protection of the Right to Trial within a Reasonable Time came into effect did not have recourse to seek protection of their right to trial within a reasonable time as their cases are not decided upon in court. It would only be possible to file a complaint after an administrative dispute was initiated. Throughout the five years that the case lasted prior to a constitutional appeal being submitted, the case never reached the administrative court for deliberation, which clearly indicates that there is a need to ensure protection from inefficient conduct of administrative bodies.
Considering the need to protect citizens from inefficient conduct of administrative bodies, as well as the powers of the Supreme Court of Cassation to, pursuant to article 35 of the Rules of Procedure of the Supreme Court of Cassation, propose the initiation of an initiative to change regulations, the A11 Initiative for Economic and Social Rights sent a letter to the Supreme Court of Cassation requesting that an initiative to amend the Law on the Protection of the Right to a Trial within a Reasonable Time be initiated.