The Silence of the Administration Should Be Interpreted as Acceptance of the Complaint or Request

In a decision of the Constitutional Court that I am reading, the case is quite complex, so I will not burden you with it. However, this decision relates to the duration of administrative and administrative court proceedings in one case, and the cause of the duration is also in the silence of the administration. The Constitutional Court has stated that the legal remedy against the silence of the administration is ineffective, and we have a proposal on how to overcome this problem. In fact, our proposal concerns the administrative procedure before some state bodies; unfortunately, we have no idea how to expedite administrative court proceedings.

As the Constitutional Court reminds us in the decision (on this complicated case), as far back as 2005, this institution assessed that legal protection measures against the silence of the administration are very often ineffective in expediting administrative procedures, which is clearly shown by administrative practice in Croatia. They emphasize that neither the complaint nor the lawsuit due to the silence of the administration is intended to correct these deficiencies, nor can they be corrected by these legal remedies, so it is clear that the matter is ineffective.

Justified Concern

Indeed, the Constitutional Court reminds us of the attempt to correct these violations by introducing provisions into the Law on Courts in 2013, since when a new model of regulation of the constitutional right to a trial within a reasonable time has been in effect. It encompasses two legal remedies for protection: a party’s request for protection of the right to a trial within a reasonable time and a request for payment of appropriate compensation due to the violation of the right to a trial within a reasonable time.

In the case I read, the administrative procedure, and then the trial at the Administrative Court, has lasted for sixteen years, and it concerns the state expropriation of part of the land for a state company to build infrastructure on it. The landowner was not satisfied with the compensation, so he complained to the responsible ministry, which was silent on the complaint for a while, and then was rejected in the administrative procedure and decided to sue the state at the Administrative Court. And here the silence of the administration occurred because the court did not respond to his request for expedited proceedings.

The Constitutional Court therefore ordered the Administrative Court to render a judgment within a specified period and determined fair compensation from the state budget to the complainant for all the years of waiting. But I fear that no progress has been made through legal interventions. I see this because, by the nature of my work, I often read about similar decisions of the Constitutional Court, which suggests to us that the concern is justified. In other words, there is no accountability for those who need to make certain decisions, and that is the problem, which we already know, and we can only appeal to those who write regulations to include personal responsibility for those who make decisions important for the lives of citizens and businesses.

As I mentioned, we do not have an effective solution for the court except to sanction those responsible. But perhaps the silence of the administration could at least be curbed, if it cannot be eliminated, if we were to introduce a rule that if, within a certain period, the applicant or complainant against the decision of a county, municipal, or state body does not receive a response, it will be considered that their request or complaint has been accepted.

Let’s At Least Do Something

This is not new; we have already offered such a proposal to state bodies and the public a few years ago in Lider, but it is worth repeating, so who knows, maybe someone responsible will conclude that we could at least try to implement it. In this way, the duration of the procedure would at least be reduced, although this is not the only factor affecting the slowness of the administration and courts. Another matter is whether the heads of state and local bodies, after the silence of the administration grants a citizen or entrepreneur the right they demand, would impose sanctions against the official or whoever else for not responding to the request in time. I highly doubt it, if we know what the practice has been so far.

And they could really be held accountable because what some citizen or entrepreneur requests or complains about in the administrative procedure does not necessarily mean that they are right. But that is another topic. Let’s at least introduce that the silence of the administration grants rights to people in their requests, which will expedite administrative procedures, and we will hopefully also discuss accountability at some point.

POST SCRIPTUM

Another problem was pointed out by the Constitutional Court in its assessment of the reasons for slowness. It states that the unreasonable length of decision-making in administrative and administrative court proceedings is influenced by the fact that administrative courts in Croatia often return the administrative matter for a new administrative procedure, most often due to incomplete or incorrectly established facts. Such administrative and administrative court practice points to significant deficiencies in the procedural administrative law system in Croatia.