DOES THE REGULATION OF THE PROCEDURE OF PREJUDICIAL ADMINISTRATIVE DISPUTES IN SUB-STATUTORY LEGISLATION CORRESPOND WITH THE PRINCIPLE OF LEGAL DEFINITION?

Abstract

One of the major characteristics of the state of law is that a person does have the right to apply to the court if he/she believes that his/her rights have been violated. This right is established in the Constitution of the Republic of Lithuania and international legal acts. The State is getting more and more involved in the regulation of social relations; thus, it is not surprising that there are more and more disputes between an individual and the state administrative institutions. The scope of legal cases in administrative courts is rapidly increasing, moreover, we have to bear in mind that court processes are complicated and formalised, and these circumstances could prevent a person from exercising his/her right to defend violated rights in court quickly and efficiently.

Recommendation Rec (2001)9 of the Committee of Ministers to member states on alternatives to litigation between administrative authorities and private parties was adopted in order to accelerate and make it easier for a person to defend his/her violated rights against the decisions taken by the authorities or their actions. This recommendation provided more options for preliminary administrative dispute resolutions that would enable to solve the disputes between an individual and the authorities in the European Union more efficiently. Therefore, the examination of pre-trial administrative disputes has become even more relevant. Quasi-judicial bodies that are designed to resolve disputes between individuals and state institutions have been existing in Europe since the 19th century and are the most appropriate for handling such pre-trial disputes. Quasi-judicial bodies in administrative law are important because they contribute to the protection of human rights. The purpose of the quasi-judicial body is to make the examination of administrative disputes as simple as possible, but at the same time to maintain an impartial examination of the dispute and to ensure a reasonable decision. The purpose of quasi-judicial bodies is the same as that of the court - to defend violated human rights. The possibility of preliminary administrative dispute resolution appeared in Lithuania in 1999 when Lithuanian administrative justice system was undergoing the course of reforms. Pre-trial examination of administrative disputes is encouraged in Lithuania as a means ensuring a person's right to a court and is a part of fair administration system. Lithuanian Administrative Disputes Commission, the Tax Disputes Commission are major institutions of pre-trial administrative disputes regulations, however, the Law on Administrative Cases stipulates that in special categories of public administration, pre-trial administrative disputes can be managed by special legal regulations. This legal provision in certain public administrative categories of the law provides an opportunity to define regulations of pre-trial administrative disputes procedures not only in the law, but also in sub-statutory legal acts. Such regulations create favourable conditions for transferring the procedures of preliminary disputes examination to sub-statutory legal acts. Lithuanian legal scholars assert that only law but not sub-statutory legal acts could regulate pre-trial administrative disputes, their status and functions. Therefore, establishing the procedure for pre-trial administrative disputes in sub-statutory legal acts may contradict the principle of legal certainty.

The first chapter of the article presents analysis of the principle of legal definition, its purpose in the law, how this principle is understood by legal scholars in Lithuania and foreign countries, how it is applied in the EU law, what are the practices of national courts and why this principle is considered as essential in the law. In the second part of this chapter the institution of preliminary pre-trial administrative disputes is researched, describing how it is revealed in scientific articles, what entities can carry out the examination of these disputes, what requirements are applied to them, and how these entities are classified.

The second chapter presents how the EU is promoting pre-trial administrative disputes in national law and why, what legal acts regulate pre-trial administrative dispute resolution in Lithuania, and which entities perform pre-trial administrative disputes. At the moment, there are two basic laws in Lithuania that regulate such dispute resolution. However, these laws contain a provision that the examination of pre-trial administrative disputes in special administrative categories may be determined by other laws. Therefore, it is analysed in what special administrative categories the procedure for examining pre-trial administrative disputes is established in other laws and how this procedure is regulated in these laws. The laws that determine the order in special administrative areas do not have general and clear provisions for defining the order of these disputes, and the regulation is transferred to sub-statutory laws. The second part of this chapter presents, what sub-statutory legal acts regulate mandatory pre-trial administrative disputes. Hence, the tendency is evident that examination of such disputes is formally established in the laws, however, after transferring the regulation to sub-statutory legal acts, it becomes vague. In some cases, such legal norms established by sub-statutory legal acts might contradict the law itself. The Court of Justice of the European Union has formed the criteria that must be followed in pre-trial administrative disputes regulations in institutions, but in Lithuania there is a lack of compliance to the guidance of the criteria suggested by the Court of Justice of the European Union when the procedure itself is regulated in sub-statutory legal acts. Consequently, favourable conditions occur for such dispute resolution regulations to be vague and ambiguous, and it is not clear whether such a procedure really ensures effective resolution of disputes in relation to a person.

The conclusion can be made that procedures of the pre-trial administrative disputes regulated by sub-statutory legal acts allow to make reasonable assumptions about the vague and ambiguous understanding of the procedure that does not provide assurance of legal certainty.