U-I-219/03

Reference no.:
U-I-219/03
Objavljeno:
Official Gazette RS, No. 118/2005 and OdlUS XIV, 88 | 01.12.2005
ECLI:
ECLI:SI:USRS:2005:U.I.219.03
Abstract:
The provisions of the Auditing Act in accordance with which the Institute issues a reprimand to an authorized auditor or an auditor if they violate the rules of auditing and the conditions for the withdrawal of a permit or for the conditional withdrawal of a permit are not fulfilled, cannot be alleged to be indefinite and thus inconsistent with Art. 2 of the Constitution. By the interpretation of the statutory provisions it is namely possible to establish on the basis of which conditions the Institute pronounces the measure of the withdrawal of a permit and on the basis of which conditions it issues a reprimand.

Merely the fact that for various fields of law the legislature enacts special procedures for deciding on rights and obligations, cannot in itself be inconsistent with the principle of equality before the law. As in the case of the challenged regulation a specific procedure is concerned, which due to its nature requires special effectiveness, the statutory provisions by which procedural questions are regulated differently than the general regulation, are not inconsistent with the principle of equality before the law.

The regulation according to which a party does not have the right to state new facts and propose new evidence after the expiry of the time limit to make a statement before the Institute, does not entail that after the party made a statement the competent body can conduct proceedings on the basis of facts regarding which the party did not have the opportunity to make a statement, or take evidence which had not been stated initially.

The regulation which limits the right of a party to make a statement to only a certain time during proceedings is a constitutionally admissible interference with the right to the equal protection of rights, as the pursued goal of the acceleration and concentration of proceedings can thereby be achieved. In addition to that, the weight of consequences is proportional to the weight of the value of the pursued goal, since the party has a sufficient possibility to make a statement concerning all the relevant aspects of the case.

Failing to hold an oral hearing in cases in which in view of the circumstances this is not necessary, cannot affect the party's right to make a statement.

From the right to legal remedies it does not follow that "another legal remedy" should always be ensured within concrete proceedings, however the function of a legal remedy can exceptionally be implemented by means of a request for the examination of a decision within judicial proceedings. This in particular applies in cases in which appellate decision-making does not have the function of unifying administrative case law. Thus, in cases in which the highest authorities of the individual branches of power or professional bodies that have been especially established for that purpose by law as bodies of the first and last instances decide on individual administrative cases, the judicial review of administrative acts can be considered "another legal remedy" in the meaning of the right to legal remedies determined in Art. 25 of the Constitution, but only, however, given that the basic purpose of appellate review as ensured by this human right is thereby still provided – i.e. that this legal remedy is by its nature equally effective as an appeal in an administrative procedure. If such a legal remedy is ensured, the exclusion of an appeal against a decision within an administrative procedure does not interfere with Art. 25 of the Constitution. The procedure of judicial protection pursuant to the Auditing Act provisions meets the mentioned requirements, thus the regulation according to which there is no appeal against decisions of the Institute does not interfere with the right to legal remedies.

The determination of an especially short time limit for the commencement of judicial protection is an excessive interference with the right to judicial protection, given that the court is not obliged to act particularly fast in such a procedure. Thus, the Constitutional Court annulled the provision in accordance with which an action against a decision of the Institute must be filed within a time limit of eight days.

The regulation according to which the plaintiff in judicial protection proceedings cannot state new facts and propose new evidence does not interfere with the right to the equal protection of rights from the view of the equal treatment of parties. Furthermore, from the view of the right to make a statement, this entails an admissible interference with the mentioned constitutional right. The party namely has sufficient opportunity to make statements concerning all the relevant aspects of the case. Moreover, the mentioned regulation is not inconsistent with the right to judicial protection.

The regulation, in accordance with which the court in judicial protection proceedings decides without a hearing, does not in itself affect the party's right to make statements, and therefore is regarding this aspect not inconsistent with the right to the equal protection of rights.

The exclusion of appeals against the decisions of the Supreme Court in judicial protection proceedings does not interfere with the right to legal remedies when this court decides within the so-called judicial review of administrative acts on the legality of a decision. The Supreme Court namely decides as the highest appellate court in the state, and examines a challenged decision concerning the correctness of the application of (substantive and procedural) law, and with regard to the correctness of the established state of facts, only to the extent that was already established within the judicial review of administrative acts and within the limits of challenges made in the appeal.

The Constitutional Court annulled the provision which prescribes a fee for an individual act performed within the supervision procedure. As it does not follow from the statute that such an act is considered a service for which a fee can be determined, there was no statutory basis for its prescription.
Document in PDF:
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Date of application:
14.11.2003
Date of decision:
01.12.2005
Type of decision adopted:
0x
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN25445