Original scientific paper
EXPERT OPINION IN ADMINISTRATIVE DISPUTE – IS THE COURT OBLIGED TO CONDUCT IT AND WHEN?
Frane Staničić
orcid.org/0000-0001-8304-7901
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Abstract
Expert opinion in an administrative dispute is, especially in certain types of disputes, extremely significant because without its conducting the dispute is almost unresolvable. In (Constitutional) court practice the question arose whether the court ever has the obligation to conduct this type of fact determination or this is always under the discretionary power of the judge who presides the dispute. The Constitutional Court has determined that the court does not have the obligation to conduct such type of evidence, but with dissenting opinion (jointly) of three judges which is of theoretical and practical significance. Namely, on principle it is true that the court does not have such an obligation in administrative dispute. However, in certain cases such an obligation can indeed exist. This obligation can exist when expert opinion is demanded by the parties, but the paper considers the possibility that the court itself is obliged to obtain expert opinion ex offo, which is connected to the way of determining the facts in administrative dispute, namely whether the party or material truth is in force in administrative dispute. In the paper the view that the courts are obliged to obtain expert opinions always when the party suggests it, and the dispute is linked to the fact which were determined in administrative procedure just through expert opinion because an independent expert opinion which is conducted by an authorized court expert is the only way through a party from administrative procedure is able to dispute such determined facts. Regarding the obligation of the court to obtain expert opinions ex offo, it exists in all cases in which the real state of affairs cannot be otherwise determined, and the parties do not suggest fact determination through expert opinion. This obligation is closely related with court funds with which it is obliged to pay in advance for the costs of the expert opinion.
Keywords
administrative dispute, evidence presentation, expert opinion, fact determination.
Hrčak ID:
241607
URI
Publication date:
27.7.2020.
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