Varstvo pravic uporabnikov storitev na področju negospodarskih javnih služb : doktorska disertacija

slovenian

doktorska dela

2019

Univerza v Ljubljani, Pravna fakulteta
(Obvezni izvod spletne publikacije)

Public service is the service activity of the public sector; this distinguishes it from its authoritative functions, which are mainy practised by public authorities. The essence of public services is that they provide to an individual goods or services, while the authority of the providers of public services is defined either by their ability to deny these services or by their right to impose on an individual a legally prescribed responsibility he or she is compelled to accept. By doing this they make rulings on rights and responsibilities in a similar manner as the authorities. The user, therefore, inevitably needs a form of procedural protection comparable to the one an individual has in any decision during the administrative process. The main characteristic of social services is that they provide those goods and services that are the matter of essential human rights and freedoms. The most important fields of social services are health care, education, social security, and culture. Decisions by the providers of these services can be divided into two types: those that are either partially or entirely expert in their nature and administrative legal decisions. In certain cases, the two cannot be fully separated. When dealing with wholly or predominantly administrative legal decisions, the use of the Administrative Procedure Act is perfectly appropriate, provided that certain procedural regulations can be adjusted. The reason for this is that the decision-makers in these matters are trained in administrative procedures law and do not require a specialist knowledge in a non-legal field. In public service decisions that are predominantly expert in nature some specialized knowledge in a variety of fields is needed. Yet even when it comes to expert decisions certain procedural rules must be followed, foremost among them minimum procedural standards. The individuals' rights, for instance, can be violated even when they have been affected by a wholly expert decision. To rectify this, a special law should be passed defining the process for expert decision-making by public service providers or, alternatively, the existing Administrative Procedure Act should be amended. The preferred solution is definitely the development of a special procedural law that would focus exclusively on public service processes. Distinct procedural regulations for each separate field (education, health care, culture) would, conversely, result in incoherence, lack of clarity, and fragmentation. A consistent process for all public service providers would have to be simpler than the general administrative procedure. It would have to take into account all fundamental procedural principles and ensure the essential procedural guarantees. The judicial protection of an individual in an administrative dispute should also be available in expert matters, though the judicial control should in this case be restricted to the rulings on procedural matters and on reasonability and arbitrariness of the final decision.

15.05.2023