Foreign Footprints in the Administrative Law of the Kingdom of Yugoslavia, by Vuk Cucić

In the Interwar period, the Kingdom of Yugoslavia, a country erased from the map, perhaps now even forgotten, a country comprising several jurisdictions fraught with ethnic tensions and centrifugal forces set a remarkable scene for the interplay of internal and external factors that shaped its administrative law. Geography, history, the looming geopolitical challenges of the day, such as war, competing legal traditions, personal ties, friends and foes alike fashioned the two main components of its administrative procedural law – the rules of administrative procedure and administrative judiciary. All of these ingredients enabled the transfer of some of the most interesting ideas in the area of administrative law from France and Austria into the Yugoslav legal system.

The Kingdom of Yugoslavia – a country of long prehistory and short history

Understanding the development of the administrative law of the Kingdom of Yugoslavia requires a short overview of its political and legal history.

The Kingdom of Yugoslavia was a short-lived country, established in the aftermath of the World War I and occupied and ripped apart by the Axis Forces and its allies once it was absorbed in  World War II in April 1941. After WWII, it emerged as a new communist federal republic, having complete inner discontinuity with the previous legal order of unitary monarchy. The Kingdom of Serbs, Croats and Slovenes was proclaimed on December 1^st, 1918. In 1929, it changed its name to the Kingdom of Yugoslavia.

This inter-war state comprised two parts – the Kingdom of Serbia (at the time also encompassing the former Kingdom of Montenegro and the former Habsburg province of Vojvodina) and the part of the Habsburg Empire predominantly inhabited by South Slavic nations – Serbs, Croats, and Slovenes (nowadays Slovenia, Croatia, and Bosnia and Herzegovina).

Due to its multinational structure and mentioned political heritage, the Kingdom of Yugoslavia’s legal system was divided into several areas where different laws were applicable. The legal order of the former Kingdom of Serbia was not extended to the newly added parts of the country. Instead, the part of the country that once used to be a part of the Habsburg Empire retained its previous legal system. One of the first administrative authorities to be established in the new monarchy was the Ministry in charge of organising the Constitutional Assembly and unifying the legal order of the country. However, in certain legal areas, the legal unification was never achieved. For instance, for the entire existence of the Kingdom (the Interwar period), the substantive civil law was completely divided between different geographical parts of the country. One part of the country applied the Serbian Civil Code of 1844, while the other applied the Austrian Civil Code of 1811 (V. Pavić, “Prva Jugoslavija kao nejedinstveni pravni poredak”, Sto godina od ujedinjenja – formiranje države i prava, B. Begović, Z. Mirković (eds.), Belgrade, 2020).

The administrative procedural law also differed across the country, but it was eventually unified in 1930. The first step towards its unification was the creation of the two-tier administrative judiciary headed by the Council of State, which inherited its predecessor formed in the Kingdom of Serbia in 1869. The first-instance administrative courts were established around the country (The Collection of Papers – 150^th Anniversary of the Administrative Dispute in Serbia 1869-2019, Vuk Cucić (ed.), Belgrade, 2019). The second, more significant step was the enactment of the Law on General Administrative Procedure in 1930.

French influence on Yugoslav administrative judiciary

Different parts of the Kingdom of Yugoslavia experienced foreign influence in the field of administrative judiciary, i.e. judicial review of administrative acts, even before the common state was established.

The part that belonged to the Habsburg Empire was under the direct jurisdiction of the Austrian Verwaltungsgerichtshof (Administrative Court). The Kingdom of Serbia had its own Council of State, created in 1839 and equipped with the power to review the legality of administrative acts in 1869. This competence of the Serbian Council of State was inspired from the French Conseil d’Etat which served as a role model for Serbia.

Shortly after WWI ended, the Kingdom of Serbs, Croats and Slovenes unified its procedure for judicial review of administrative acts and created a two-tier administrative judiciary. This was achieved by the enactment of the Law on the Council of State and Administrative Courts of 1922.

The explanatory memorandum accompanying the bill to the national parliament (taken from the Archive of Yugoslavia) explicitly referred to the fact that the major procedural novelty originated from the French legal system. This novelty consisted in widening the scope of the legal protection before the administrative judiciary by allowing the initiation of judicial review not only in instances where plaintiffs claimed that administrative acts infringed their subjective rights, but also in the cases in which they claimed that such acts violated their legal interests. In particular, the explanatory memorandum stated that “[t]he proposal of the law determines the notion of  interest – in accordance with the case law of the French Council of State – in a way that “a direct personal interest based on the law” is required (emphasis added).” Obviously, the drafters of the law were well acquainted with the developments in the French administrative judiciary.

Hence, the French Conseil d’Etat and its case law continued to serve as role models for Yugoslav administrative judiciary.

Austrian influence on Yugoslav administrative procedure

The impact of the Austro-Hungarian and later on the Austrian legal system on Yugoslav administrative procedure was two-fold. One facet was conditioned by history and geography, while the other – by personal ties and exchange  of academic ideas in the Interwar period.

Inheriting the Austrian Legal System

Prior to the enactment of the Law on General Administrative Procedure in 1931, which unified the administrative procedure rules for the entire country, the former Habsburg part of the Kingdom used Austrian and/or Hungarian legal documents to regulate the procedure before various administrative authorities. In particular, in Croatia-Slavonia, the Austrian area (Slovenia and Dalmatia), the Hungarian area (the Serbian province of Vojvodina and parts of nowadays Croatia), and Bosnia and Herzegovina, administrative authorities applied procedural rules of general application derived from orders issued in the Austrian part of the Habsburg Empire, especially the Order of the Austrian Ministry of Interior of 17 March 1855. Additionally, in the former Hungarian parts of the Kingdom, administrative authorities also relied upon the Law on Simplification of Administrative Procedure of 1901. Finally, in Slovenia, the regional government issued a special okruznica (which can roughly be translated as “guidelines”) regulating the principles of administrative procedure before general administrative authorities on 28 February 1923. This okruznica, which did not have the force of law, but which preceded even the Austrian Law on Administrative Procedure of 1925, was predominantly based on the materials that served as a basis for the enactment of the Austrian Law of 1925 (chiefly, the practice of the Austrian Verwaltungsgerichtshof) (J. Stefanović, Komentar Zakona o opštem upravnom postupku, Belgrade, Geca Kon, 1933, p. 390).

Hence, the Austro-Hungarian legal regime applied in the administrative procedure before the authorities having their seats in the former Habsburg part of the country.

Personal Touch to the Codification of Administrative Procedure

The Yugoslav Law on General Administrative Procedure, enacted on 9 November 1930 (its application commenced on 26 February 1931), transposed the essence of the Austrian Allgemeine Verwaltungsverfahrensgesetz of 1925. The Yugoslav law, enacted after the Austrian law was reproduced in Poland and Czechoslovakia in 1928, had almost twice as many legal provisions than its Austrian model (176 articles in total), because it included numerous provisions of civil litigation procedure (L. Kostić, Administrativno pravo Kraljevine Jugoslavije, Belgrade, 1936,p. 417).

The draft of the Yugoslav law was prepared by a commission headed by Professor Ivo Krbek. Two other members were Kosta Janković, Supreme Inspector and Aleksandar Kuzmanović, General Inspector (J. Stefanović, op. cit., p. 25).

It is generally accepted in Serbian (as well as previous Yugoslav) legal theory that the Yugoslav Law on General Administrative Procedure of 1930 was predominantly based on the Austrian Allgemeine Verwaltungsverfahrensgesetz of 1925. This was confirmed by Professor Krbek in the preface he wrote for the print edition of the law in 1931 (I. Krbek, Zakon o opštem upravnom postupku, Zagreb, Obnova, 1931, p. 3).

Internal Cross-Jurisdictional Dialogues in Administrative Procedure

It is also interesting that the idea for enactment of a law that would codify the rules of the general administrative procedure came from juridical dialogue at a conference held in 1926. Namely, one of the conclusions of the Second Congress of Jurists of Yugoslavia, held in Ljubljana in 1926, was that the law on administrative procedure should be enacted as soon as possible. This conclusion was made upon the proposal of Jovan Stefanović, a judge of the Administrative Court in Zagreb. Judge Stefanović wrote the first Commentary of the Yugoslav Law on General Administrative Procedure, from which it can be seen that he was well acquainted with the lengthy process of drafting and enactment of the Austrian Allgemeine Verwaltungsverfahrensgesetz, including the role of the case law of the Austrian Verwaltungsgerichtshof and the scholarly work of Professor Friedrich Tezner in its creation (J. Stefanović, op. cit., pp. 21-25). Moreover, being a judge at the Administrative Court in Zagreb, he was well aware of the Austrian legal regulations concerning administrative procedure, given that they were still applied in this part of the country.

One should keep in mind that, despite being compatriots, jurists from different parts of the Kingdom of Yugoslavia belonged not only to different legal traditions, but also to different legal jurisdictions. Thus, their dialogues could be regarded as cross-jurisdictional. One of them yielded such a significant improvement in the field of administrative procedural law – the enactment of the Yugoslav Law on General Administrative Procedure. Therefore, both general legal circumstances (application of the Austrian law) and personal links (of Professor Krbek and Judge Stefanović) to the Austrian legal systems played a role in transposition of the Austrian Allgemeine Verwaltungsverfahrensgesetz into Yugoslav law.

Lastly, peculiar, but not particularly surprising, is the fact that the explanation accompanying the Proposal of the Law on General Administrative Procedure mentioned that certain rules of judicial civil law procedure found its place therein, but did not mention the fact that the law in its essence replicated its Austrian predecessor (taken from the Archive of Yugoslavia). On the contrary, as mentioned above, the French influence in the Law on the Council of State and Administrative Courts of 1922 was recognized and emphasised by its proponents. This could be attributed to the fact that mentioning Austria, a former enemy in WWI (unlike France, which was one of the allies), as a model might not have been well received at the time. Furthermore, this historical moment in the Kingdom of Yugoslavia was fraught with internal national struggles that led to the instauration of the dictatorship of the Monarch (the so-called Sixth-of-January Dictatorship of king Alexander I), which lasted from 1929 to 1931.

Conclusion

Two major novelties in the administrative procedural law of the Kingdom of Yugoslavia, which existed between WWI and WWII, came from abroad. The administrative judiciary widened the scope of the legal protection it provided to the individuals not having subjective rights, but ‘only’ legal interests. This resulted from the influence of the case law of the French Conseil d’Etat. More importantly in the long run, the rules of the general administrative procedure were codified on the basis of the Austrian Allgemeine Verwaltungsverfahrensgesetz.

Both Interwar legal transplants have remained permanent parts of Yugoslav law. They even outlived the Kingdom of Yugoslavia and are still part of the legal systems of the countries originating from it. Not only the scope of legal protection before the administrative judiciary was never restricted, but also various successors to the 1930 Law on General Administrative Procedure retained its spirit.

Posted by Vuk Cucić (Associate Professor of Administrative Law at the University of Belgrade – Faculty of Law).

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Suggested citation: V Cucić, “Foreign Footprints in the Administrative Law of the Kingdom of Yugoslavia”, BACL blog available at https://wp.me/p80U0W-1qe.

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This piece belongs to the “Cross-jurisdictional dialogues in the Interwar period” series dedicated to less-known legal transfers which have had a palpable impact on the advancement of the law. The Interwar period was a time of disillusionment with well-established paradigms and legislative models, but also a time of hope in which comparative dialogue and exchange of ideas between jurisdictions thrived. The series is edited by Prof Yseult Marique (Essex University) and Dr Radosveta Vassileva (Middlesex University). 

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Photo Credits

• Serbian Council of State in Belgrade: National Library of Serbia
• Prof Ivo Krbek: Serbian Academy of Science and Art