Administrative law in Bosnia and Herzegovina

Administrative law is the field in which citizens and companies most frequently come into contact with the state: ministries, city and municipal departments, inspectorates, tax administrations, public institutes and agencies issue decisions that have a direct effect on property, business operations and personal status. If you consider that a decision is unlawful, that it was issued without the facts having been properly established or without any reasoning, or if the authority simply fails to decide on your application, it is essential to react in good time and to choose the correct legal remedy, because most time limits in administrative proceedings are preclusive.

Law Office Prnjavorac provides legal assistance and representation in administrative proceedings and in administrative disputes throughout the territory of Bosnia and Herzegovina, before the administrative authorities and the courts of the Federation of BiH, Republika Srpska and the Brčko District, and before the institutions of the state. The objective is always the same: to preserve the time limit, to choose the correct legal remedy and to conduct the case through the procedure clearly and with reasoned argument.

The legislation governing administrative procedure and administrative disputes in BiH

Bosnia and Herzegovina does not have one law on administrative procedure but four, sharing the same basic structure yet differing in their time limits and in the allocation of jurisdiction. At state level, the Law on Administrative Procedure of BiH (Zakon o upravnom postupku BiH; Official Gazette of BiH, nos. 29/02, 12/04, 88/07, 93/09, 41/13 and 53/16) and the Law on Administrative Disputes of BiH (Zakon o upravnim sporovima BiH; Official Gazette of BiH, nos. 19/02, 88/07, 83/08 and 74/10) apply, under which administrative disputes against acts of the state institutions are determined by the Court of Bosnia and Herzegovina. In the Federation of BiH, the Law on Administrative Procedure of the FBiH (Zakon o upravnom postupku FBiH; Official Gazette of the FBiH, nos. 2/98, 48/99 and 61/22) and the Law on Administrative Disputes of the FBiH (Zakon o upravnim sporovima FBiH; Official Gazette of the FBiH, no. 9/05) are in force, under which administrative disputes are determined by the cantonal court for the seat of the first instance authority (Article 5 of the ZUS FBiH). In Republika Srpska, the Law on General Administrative Procedure of Republika Srpska (Zakon o opštem upravnom postupku RS; Official Gazette of RS, nos. 13/02, 87/07, 50/10 and 66/18) and the Law on Administrative Disputes of Republika Srpska (Zakon o upravnim sporovima RS; Official Gazette of RS, nos. 109/05 and 63/11) are in force, under which administrative disputes are determined by the district court for the seat of the first instance authority (Article 5 of the ZUS RS). The Brčko District has its own Law on Administrative Procedure of the Brčko District of BiH (in Bosnian), which also governs proceedings before the public administration bodies of the District.

In addition to these general laws, a great many administrative matters are governed by special legislation which may lay down a different time limit for an appeal or exclude an appeal altogether: the tax laws, the laws on inspectorates, the laws on spatial planning and construction, the Law on Expropriation, and the laws on citizenship, on foreign nationals, on civil registers and on pension and disability insurance. For that reason the first step is always a procedural diagnosis: which authority issued the act, under which general and which special legislation, whether the act is final, whether an appeal is permitted, with whom it is to be lodged, and which court has jurisdiction should an administrative dispute follow.

Administrative procedure: time limits for deciding and the right of appeal

Administrative procedure is the procedure in which an administrative authority or another holder of public powers decides on a right, an obligation or a legal interest of a party in an individual administrative matter: on licences and approvals, entries in registers and civil registers, tax liabilities, inspection measures, compensation, matters of personal status, town planning and the legalisation of buildings, expropriation, and rights arising from social and pension insurance.

The authority is required to issue a decision and serve it on the party no later than within 30 days of the submission of a duly completed application where no special investigative proceedings need to be conducted, and within 60 days in all other cases, unless a shorter time limit is laid down by special legislation (Article 216 of the ZUP FBiH, Article 206 of the ZUP RS). If the authority fails to issue a decision within that period, the party has a right of appeal as though its application had been refused (Article 11, paragraph 3, and Article 216, paragraph 3, of the ZUP FBiH). This is what is known as silence of the administration, and it is not a reason to wait but a reason to lodge an appeal with the second instance authority at once.

A party has a right of appeal against a decision issued at first instance, and only a law may provide that in particular administrative matters an appeal is not permitted, and then only where the protection of rights and of legality is secured in another way (Article 11, paragraph 1, of the ZUP FBiH). No appeal lies against a decision issued at second instance (Article 11, paragraph 4, of the ZUP FBiH); at that point an administrative dispute is the next step.

Time limit for, and content of, an appeal

An appeal against a decision is to be lodged within 15 days of the day on which the decision was served, unless the law provides otherwise (Article 227 of the ZUP FBiH, Article 215 of the ZUP RS, Article 218 of the ZUP BiH). The time limit runs separately for each participant, from the day on which the decision was served on that participant, so the regularity of service is the first thing we verify in every case. The appeal must identify the decision being challenged, the name of the authority that issued it, and the reference number and date of the decision; it is sufficient for the appellant to set out in what respect he or she is dissatisfied, but new facts and new evidence may also be adduced in the appeal, together with an explanation of why they were not adduced in the first instance proceedings (Article 229 of the ZUP FBiH). The second instance authority must decide on the appeal no later than within 30 days of the lodging of the appeal in the Federation of BiH (Article 244 of the ZUP FBiH), and within 60 days in Republika Srpska (Article 232 of the ZUP RS).

The most common reasons why a good case fails are not weak arguments but a missed time limit, an appeal lodged with the wrong authority, an appeal that does not identify the decision being challenged, or an appeal that attacks the findings of fact without evidence. That is why we draw up a checklist for every appeal: the date and manner of service of the decision, the last day of the time limit, the authority with which the appeal is to be lodged, the formal requirements of the appeal, the grounds of appeal (breach of the rules of procedure, incorrectly or incompletely established findings of fact, incorrect application of substantive law) and the evidence to be attached.

A missed time limit: restoration to the previous state

A party who has missed a time limit for justified reasons may be granted restoration to the previous state. The application is to be lodged within eight days of the day on which the cause of the default ceased, or of the day on which the party learned of the default, and once three months have elapsed from the day of the default such restoration may no longer be sought (Article 103 of the ZUP FBiH). The same rules are contained in Articles 90 to 96 of the ZUP RS. This institution is an exception and not the rule, so it should not be relied upon where the time limit can still be met.

Extraordinary legal remedies in administrative proceedings

Once a decision has become final, it may be altered only in the cases expressly provided for by law (Article 12 of the ZUP FBiH). The most important extraordinary legal remedy is the reopening of the proceedings: proceedings concluded by a final decision are to be reopened where new facts or new evidence come to light that could lead to a different decision, where the decision was issued on the basis of a false document or false testimony, where it is founded on a judgment that has subsequently been set aside, or where the party was not afforded the opportunity to take part in the proceedings (Article 246 of the ZUP FBiH, Article 234 of the ZUP RS). A party may seek the reopening of the proceedings within 30 days of the day on which it learned of the ground for reopening (Article 249 of the ZUP FBiH). Alongside reopening, the law also provides for the annulment and revocation of a decision by way of supervisory powers (Article 261 of the ZUP FBiH), the revocation of an enforceable decision in order to avert a serious and immediate danger (Article 263 of the ZUP FBiH) and the declaration of a decision as null and void, for example where the decision was issued in a matter falling within the jurisdiction of the courts or where its enforcement would constitute a criminal offence (Articles 264 and 265 of the ZUP FBiH, Article 252 of the ZUP RS).

Administrative dispute: judicial review of the lawfulness of an administrative act

An administrative dispute may be conducted only against an administrative act, that is to say an act by which the competent authority determines a particular right or obligation of an individual or a legal person in an administrative matter (Article 8 of the ZUS FBiH). Acts that do not have the character of an administrative act, for example consents, opinions or notifications, cannot be challenged in an administrative dispute, as is confirmed by the case law of the Supreme Court of the Federation of BiH set out further down this page. As a rule, an administrative dispute may be instituted only once the act is final, that is to say once the right of appeal has been exhausted or where no appeal is permitted.

The claim is to be filed within 30 days of the day on which the administrative act was served on the party, with the cantonal court in the Federation of BiH (Article 18 of the ZUS FBiH) and with the district court in Republika Srpska (Article 15 of the ZUS RS). Before the Court of Bosnia and Herzegovina, where an act of a state institution is challenged, the time limit for filing a claim is 60 days (Article 19 of the ZUS BiH). As a rule, a claim does not prevent the enforcement of the administrative act (Article 17 of the ZUS FBiH, Article 14 of the ZUS RS), so where necessary an application for a stay of enforcement pending the court's decision is submitted to the authority competent for enforcement, together with proof that a claim has been filed.

Silence of the administration as a ground for an administrative dispute

Where the second instance authority has not issued a decision on the appeal within 30 days and fails to do so even upon the request of the administrative inspection to which the party has turned, the party may institute an administrative dispute as though its appeal had been refused (Article 20 of the ZUS FBiH). In Republika Srpska the same right arises where the second instance authority fails to decide within 60 days and within a further period of 15 days following a repeated request (Article 17 of the ZUS RS), and before the Court of BiH where the second instance institution fails to decide within 30 days and within a further period of seven days following a written request (Article 21 of the ZUS BiH). These repeated requests must be made in writing and must be capable of proof, since they are a procedural precondition for the claim.

Request for extraordinary review of a court decision

Against a final decision of a cantonal court issued in an administrative dispute, a party may lodge a request for extraordinary review of the court decision with the Supreme Court of the Federation of BiH on the ground of a breach of federal law or of the rules of procedure, within 30 days of service of the decision (Articles 41 and 42 of the ZUS FBiH). In Republika Srpska the request is lodged with the Supreme Court of Republika Srpska, through the district court, likewise within 30 days (Articles 35 and 36 of the ZUS RS). The court examines the challenged decision only within the limits of the request and of the breaches of law relied upon (Article 45 of the ZUS FBiH), so this pleading must be formulated with precision.

What we do in administrative proceedings and administrative disputes

At the stage of the administrative proceedings we prepare applications and pleadings, represent the party at oral hearings and in inspection supervision, monitor the time limits for deciding and respond to silence of the administration, and draft appeals against first instance decisions and procedural orders, as well as applications for restoration to the previous state and for the reopening of proceedings. At the stage of the administrative dispute we draft the claim and the application for a stay of enforcement, appear before the cantonal and district courts and before the Court of BiH, and lodge requests for extraordinary review of court decisions with the Supreme Court. Once the legal remedies in the administrative dispute have been exhausted, we assess the grounds for an appeal to the Constitutional Court of Bosnia and Herzegovina for breach of the right to a fair trial or of the right to property.

The cases we typically handle are: town planning and building permits and the legalisation of buildings, entries and changes in the civil registers, renunciation of and release from citizenship of BiH, the residence and employment of foreign nationals, expropriation and compensation for expropriated real property, tax assessments and decisions on additionally assessed tax liabilities, inspection measures and prohibitions on trading, rights arising from pension and disability insurance, concessions and public procurement, and proceedings before agencies and regulators at state level. More on tax cases: tax law in BiH.

How we work: a method that protects time limits and reduces risk

In administrative law, organisation matters just as much as legal knowledge. Every case begins with a procedural diagnosis of the act: we establish the date and manner of service, calculate the time limit, identify the authority with which the legal remedy is to be lodged, and check whether special legislation alters the general rules. We then analyse the file, the records of proceedings and the evidence on which the authority has based its decision, because, as a rule, new facts cannot be adduced in an administrative dispute. We build our arguments on three levels: breach of the rules of procedure, incorrectly or incompletely established findings of fact, and incorrect application of substantive law, with reference to the case law of the Supreme Court of the Federation of BiH, the Supreme Court of Republika Srpska and the Court of BiH which we publish on this website.

What to prepare before a consultation

So that we can assess the time limits and the risks quickly, it is helpful to have ready the decision or procedural order being challenged, proof of the date of service (the envelope, the service slip or the signature on the acknowledgement of receipt), your application and all pleadings you have submitted so far, the records of any oral hearing or inspection supervision, and all correspondence with the authority. If the authority has remained silent, proof of the date on which the application was submitted and of any repeated requests will be required. You may send everything by email, and we check the time limits immediately upon receipt.

Administrative law case law and legislation on this website

The office maintains one of the largest public collections of administrative law case law in Bosnia and Herzegovina: administrative law in BiH, case law, part one (in Bosnian) (103 holdings) and part two (in Bosnian) (200 holdings), followed by case law relating to individual statutes: case law on the Law on Administrative Procedure (in Bosnian), on the Law on General Administrative Procedure of Republika Srpska (in Bosnian), on the Law on Administrative Disputes (in Bosnian) and on the Law on Expropriation (in Bosnian). The texts of the legislation are available in the laws of BiH (in Bosnian) section, including the Law on Administrative Procedure of the FBiH, the Law on General Administrative Procedure of Republika Srpska, the Law on Administrative Procedure of BiH and the laws on administrative disputes at all three levels.

Frequently asked questions