Scholarly record

JUDICIAL PROTECTION AGAINST ADMINISTRATIVE MISDEMEANOR DECISION ADOPTED BY MISDEMEANOR ORGAN IN REPUBLIC OF MACEDONIA: DILEMMAS AND CHALLENGES

Jeton Shasivari

Abstract

In this paper the author deals with the practical analysis of the relationship between Administrative Law and Criminal Law and, on the other hand, between the Administrative Procedure and the Criminal Procedure within the legal system of the Republic of Macedonia. Although, Criminal Law and Administrative Law are fundamentally different from each other, according to the object and the manner of regulation, since Criminal Law includes legal norms that refer to criminal offense, the perpetrator, criminal liability, as well as criminal sanctions and the execution of sanctions, yet these two legal branches also include matters affecting one another, such as the misdemeanors as a special kind of administrative delinquency, where the interaction of the institutes of Administrative Law and Criminal Law is expressed in such a way that, in the context of the misdemeanor procedure, which is most often guided by the administrative bodies and which has many features of the administrative procedure, when determining the existence of a misdemeanor and the responsibility for it, some institutes of Criminal Law apply, such as: liability, mitigating and aggravating circumstances, intention, negligence, ultimate need, necessary defense, etc. Also, the author deals with the practical analysis of the interaction that exists between the Administrative Procedure and the Criminal Procedure in the RM, which also comes to terms of the misdemeanor procedure under which the Administrative procedural institutes apply, such as: the judgment is not issued, but the decision on the misdemeanor as well as the Criminal procedural institutes apply, such as: regarding the determination of misdemeanor liability. In this paper, the author also reflects the scientific discussion that is currently being conducted in the Republic of Macedonia regarding the misdemeanors whether the misdemeanor procedure is part of the Administrative procedure, the Criminal procedure or a separate procedure, whereby according to the legal provisions in force, the Misdemeanor procedure is separated from the Administrative procedure and joins the Criminal procedure when courts decides on the misdemeanors, whereas this procedure remains within the Administrative procedure when the administrative organs and bodies decides on the misdemeanors. Finally, this paper will also analyze the novelties in the legislation in the Republic of Macedonia regarding the misdemeanors, for which the state administration bodies are competent to act. In this sense, the first instance and the second instance misdemeanor procedure are analyzed, as well as the judicial protection against a decision for a misdemeanor issued by a misdemeanor body, which is provided in an administrative dispute before the Administrative Court and the Higher Administrative Court of RM.

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