Mandatory main hearing in administrative dispute
Author: Žiga Novak
On 26 September 2020, the Supreme Court of the Republic of Slovenia (“Supreme Court”) adopted its decision no. X Ips 22/2020, in which it took the viewpoint that a main hearing, on which points of law and facts of the case will be established, is mandatory also in an administrative dispute. The decision of the Supreme Court follows recent decisions of the Constitutional Court of the Republic of Slovenia and the European Court for Human Rights, in which they also opined that a main hearing in an administrative dispute is mandatory.
In the administrative dispute the Administrative Court offers judicial protection of the individuals’ and organisations’ rights and legal interests against the decisions and acts of state authorities, local community authorities and bearers of public authority. According to the provisions of the Administrative Dispute Act (ZUS-1), even before the aforementioned decision of the Supreme Court had been adopted, the Administrative Court should have adjudicated after the main hearing, but main hearings in administrative disputes have rarely been held in practice. Until now, rather than holding a main hearing, the Administrative Court usually decided to use one of the statutory exceptions which allows it to adjudicate on a session without a main hearing (e.g. the main hearing was not necessary in case the facts of the case between the plaintiff and the defendant were contentious, but the parties stated only new facts and new evidence, which the court may not take into consideration or the proposed new facts and evidence were not relevant for the decision). It is expected that after the adoption of the aforementioned decision of the Supreme Court the manner in which the Administrative Court shall render its decisions will be significantly different.
The Supreme Court ruled that the Administrative Court, by failing to hold a main hearing in a case where facts of the case between the plaintiff and the defendant were contentious, substantially violated the provisions of the administrative dispute procedure and inadmissibly interfered with the parties’ right to a main hearing which is one of the rights on equal protection of rights under Art. 22 of the Constitution of the Republic of Slovenia. The Supreme Court explained that the above-mentioned exception, which allows the Administrative Court to adjudicate without a main hearing if the facts of the case are contentious, is unconstitional and the Administrative Court may no longer use it as a basis to adjudicate without a main hearing. This will ensure that the parties in such cases will be able to exercise their right to further state the facts and present evidence at the first hearing. In addition, the Administrative Court will be able to decide at a main hearing to present any evidence which it considers as contributing towards the clarification of the case and towards a lawful and correct ruling, even if the parties would not present it.
The Supreme Court still allows the Administrative Court to use any of the remaining exceptions (e.g. if facts of the case are not contentious) to adjudicate without a main hearing; however, when doing so it must give a clear and explicit statement of reasons for its decision in the judgment.
In view of the above, it is expected that the main hearing in administrative dispute will no longer be used as an exception, but that it will become a rule. Significant increase of the number of main hearings before the Administrative Court will on one hand be reflected in more efficient judicial protection of rights and legal interests of individuals and organisations against decisions and actions of state authorities, local community authorities and bearers of public authority, but will on the other hand most likely result also in a much longer duration of the proceedings.