Common Sense Argument in Administrative Dispute in Croatia

Abstract

Lawful and fair decisions of the courts imply a factual situation which is established
correctly and completely. They also imply a teleological interpretation
and correct application of substantive law to every individual relation. Administrative
courts are entitled to control the decisions of administrative bodies, with
the aim of protecting citizens’ rights guaranteed by the Constitution, European
Convention on Human Rights and Fundamental Freedoms, General Administrative
Procedure Act, and other acts and regulations in the Republic of Croatia.
Deviations from the fundamental postulates of administrative dispute, as well as
their rigid and mechanical application, are referred to in the relevant literature
and practice as excessive formalism. Therefore, following a brief presentation of
the role of administrative dispute in Croatia, authors analyse excessive formalism
in judgments of the European Court of Human Rights. The common sense
argument stands opposite excessive formalism. The aim of this paper is to identify
the shortcomings of administrative and courts’ practice due to the disregard of
the argument of common sense in administrative disputes. The common sense
argument is present in the recent constitutional court’s case law, considering the
fact that the law should not be mechanically applied and that each individual
case should be considered separately. The paper analyses the common sense
argument in the courts’ case law with the aim of protecting the rule of law and
the constitutional rights of individuals. The paper presents the protection of individual
rights and legal interests through the case law of administrative courts,
the Constitutional Court, and the European Court of Human Rights. Authors
provide certain standpoints for more frequent use of the common sense argument
in administrative and administrative courts’ practice.