CJ-DA-GT (2003) 1
WORKING PARTY OF THE PROJECT GROUP
ON ADMINISTRATIVE LAW
(CJ-DA-GT)
1st meeting
Strasbourg, 10 March – 12 March 2003
MEETING REPORT
FOREWORD
At the current meeting, the CJ-DA-GT in particular:
a. discussed the proposal to draft an additional protocol to the European Convention on Human Rights on the judicial review of administrative action (cf. part II below) ;
b. agreed that the title of the recommendation whose draft is being prepared in 2003 should read as follows “Recommendation on the judicial review of administrative action” (cf. part III, paragraph 22 below) ;
c. examined the outcome of the 1st Conference of Presidents of Supreme Administrative Courts in Europe, questions which could be included in the draft recommendation and the draft structure of the recommendation (cf. part III and appendices IV et V below) ;
d. agreed to decide on the definitive structure of the recommendation at its next meeting (see part III, paragraph 15 below).
Secretariat memorandum
prepared by the Directorate General of Legal Affairs
TABLE OF CONTENTS
REPORT OF THE 1st MEETING
I. INTRODUCTION
II. EXCHANGE OF VIEWS ON THE PROPOSAL TO DRAW UP AN ADDITIONAL PROTOCOL TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS ON THE JUDICIAL REVIEW OF ADMINISTRATIVE ACTION
III. EXCHANGE OF VIEWS ON THE RELEVANT ASPECTS OF THE JUDICIAL REVIEW OF ADMINISTRATIVE ACTION WITH A VIEW TO PREPARING THE PRELIMINARY DRAFT RECOMMENDATION ON THIS SUBJECT
IV. REQUEST FOR AN OPINION TO THE CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE)
V. EXCHANGE OF VIEWS ON QUESTIONS TO BE CONSIDERED BY THE CJ-DA AS FROM 2004
VI. CALENDAR OF FUTURE MEETINGS OF THE CJ-DA-GT
APPENDIX I - LIST OF PARTICIPANTS
APPENDIX II - AGENDA
APPENDIX III - SPECIFIC TERMS OF REFERENCE OF THE PROJECT GROUP ON ADMINISTRATIVE LAW (CJ-DA)
APPENDIX IV - QUESTIONS FOR INCLUSION IN THE PRELIMINARY DRAFT RECOMMENDATION ON THE POSSIBILITY AND SCOPE OF JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS IN THE MEMBER STATES
APPENDIX V - DRAFT STRUCTURE OF THE RECOMMENDATION ON THE JUDICIAL REVIEW OF ADMINISTRATIVE ACTION
REPORT OF THE 1st MEETING
I. INTRODUCTION
1. The Working Party of the Project Group on Administrative Law (CJ-DA-GT) held its first meeting from 10 to 12 March 2003 at the headquarters of the Council of Europe in Strasbourg, with Mr Matti Niemivuo (Finland) in the chair. The participants are listed in Appendix I to the present rapport.
2. The CJ-DA-GT examined and adopted the agenda as set out in Appendix II to the present rapport.
3. The CJ-DA-GT welcomed Mrs Danuta Wiśniewska-Cazals, who had been working as Secretary of the CJ-DA and the CJ-DA-GT since January 2003 and thanked Mrs Sophie Meudal–Leenders, the former Secretary of the CJ-DA.
4. The Secretariat said that the CJ-DA-GT would hold three meetings in 2003 and that no plenary meeting of the CJ-DA was planned for this year.
5. It also pointed out that the work to be carried out by the CJ-DA-GT in 2003, as laid down in the specific terms of reference of the CJ-DA (see Appendix III to the present report), stemmed from the findings of the procedure for monitoring member States' honouring of their commitments in connection with the "functioning of the judicial system".
II. EXCHANGE OF VIEWS ON THE PROPOSAL TO DRAW UP AN ADDITIONAL PROTOCOL TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS ON THE JUDICIAL REVIEW OF ADMINISTRATIVE ACTION
6. The CJ-DA-GT noted that, in accordance with the CJ- DA's instructions (see: CJ-DA (2002) 6, paragraph 29), it had the task in 2003 of preparing, for the CJ-DA, a preliminary draft general recommendation on the possibility and scope of the judicial review of administrative decisions.
7. The Chairman of the CJ-DA-GT asked the delegations what type of international instrument should, in their opinion, govern judicial review of administrative action: recommendation, additional protocol to the European Convention on Human Rights or a full convention.
8. The delegations stressed the utility of drawing up an international instrument in this area in order to consolidate existing standards, strengthen judicial control and encourage good practices in the member States.
9. Professor D. Harris, the CJ-DA's scientific expert, said that Article 6 of the European Convention on Human Rights had not been drafted to cover administrative disputes but the Strasbourg Court's case-law had partly remedied that situation.
10. Some delegates, including the Chairman of the CJ-DA-GT, thought it desirable to consider the expediency of drawing up an additional protocol to the ECHR in this area, since some administrative acts might fall outside the scope of Article 6 and a recommendation had no binding force. The recommendation which the CJ-DA-GT was to draw up in 2003 might serve as a basis for that protocol. Following discussion, the CJ-DA-GT decided to return to this question at a later date.
III. EXCHANGE OF VIEWS ON THE RELEVANT ASPECTS OF THE JUDICIAL REVIEW OF ADMINISTRATIVE ACTION WITH A VIEW TO PREPARING THE PRELIMINARY DRAFT RECOMMENDATION ON THIS SUBJECT
11. The Chairman of the CJ-DA-GT invited the delegations to make proposals for the content of the preliminary draft recommendation on the judicial review of administrative action, taking particular account of the conclusions adopted by the Presidents of Supreme Administrative Courts at the end of their first conference on that theme (see: PSAC-Conclusions or CJ-DA (2002) 6, Appendix IV).
12. The CJ-DA-GT's scientific expert outlined the Conference conclusions mentioned in paragraph 11 above, emphasising the importance attached by the participants to the judicial review of administrative action for the Rule of law and human rights protection. The main points were as follows:
- all administrative acts should be subject to judicial review, including silence or failure to act on the part of authorities;
- other methods of reviewing administrative acts, such as internal review within authorities and supervision by the ombudsman, as well as alternative dispute resolution, must be encouraged;
- judicial review may be exercised by special administrative courts or by the ordinary courts, or by a combination of the two, and the remedies may be tailor-made and/or generally available;
- the independence and impartiality of the court exercising judicial review must be guaranteed;
- judicial review should be widely accessible to natural and legal persons;
- judicial review should respect and ensure the procedural fair hearing guarantees of Article 6 of the European Convention on Human Rights;
- judicial review should be effective;
- the interpretation of Article 6 of the European Convention on Human Rights has evolved considerably and the Strasbourg Court now applies this article to administrative litigation; this practice should be encouraged.
13. The delegations agreed to use the text of the conclusions of the Conference of Presidents of Supreme Administrative Courts to identify the points that were to appear in the recommendation. They then examined a list of matters for possible inclusion in the recommendation, prepared by the Secretariat, and the draft structure of the recommendation, prepared by the scientific expert (see Appendices IV and V respectively of the present report).
Structure of the recommendation
14. The Portuguese delegation proposed dividing the recommendation's subject-matter into three parts: the purpose (identification of the activities of authorities that should be subject to judicial review), procedure (fair trial, reasonable time, grounds for decisions, public hearing, independence and impartiality etc) and scope (effectiveness of the review, provisional protection measures, the judge's power to give directions, execution etc). The Netherlands delegate proposed organising the recommendation into four sections: purpose, scope, time of review and execution.
15. The CJ-DA-GT agreed to decide on the definitive structure of the recommendation at its next meeting.
16. The CJ-DA-GT then examined a number of issues which, in its opinion, should be included in the draft recommendation. These issues are set out below.
Objectives of the recommendation
17. The CJ-DA-GT agreed with the Swiss delegate that the recommendation should present administrative justice in terms of how it should evolve in the future and that the definition of the recommendation's objectives should be incorporated at the very beginning.
18. The Chairman of the CJ-DA-GT stressed that the recommendation should facilitate access to judicial review and not restrict it, and give citizens greater legal security. The Belgian delegation proposed defining the recommendation's purpose (or objectives) as follows: "The purpose of the Recommendation is to establish the principles to be applied in the judicial review of authorities' actions in a State governed by the Rule of law. It is to be stressed that in a State governed by the Rule of law, the administrative authorities are subject to the law and supervision of courts like any individual or citizen, pursuant to the principle of the pre-eminence of law".
Definitions
19. The delegations agreed that the recommendation should define the following two notions: administrative action and judicial review.
20. Following discussion on this point, the CJ-DA-GT decided that the notion of administrative action should cover not only actions but also omissions or silence on the part of the authorities. Some delegations proposed that this notion be restricted to individual actions alone, whereas others wished to adopt a broader definition that might cover individual and normative actions. The question was raised as to whether contracts should be subject to judicial review. The Andorran delegate proposed the following wording: "unilateral decision or act, explicit or tacit, taken directly by an administrative authority, that may harm the interests of public or private persons".
21. Some delegations stressed that the definition of the authority exercising judicial supervision should contain a reference to Article 6 of the European Convention on Human Rights and that this definition should exclude internal administrative remedies. The extent of supervision should also be specified. The Andorran delegation proposed the following wording: "examination by an independent and impartial court of the lawfulness of an administrative action".
Title of the recommendation
22. In the light of discussion on the notions of administrative action and judicial review, the delegations to the CJ-DA-GT agreed that the title of the recommendation should be: "Recommendation on the judicial review of administrative action" in English ("Recommandation sur le contrôle juridictionnel des actes de l’administration" in French).
Preamble
23. The Chairman of the CJ-DA-GT opened discussion on the content of the recommendation's preamble and proposed that it include examples of good practices and refer to the relevant case law of the European Court of Human Rights.
General principles
24. The scientific expert proposed that the recommendation reflect the principles set forth in the conclusions of the Conference of Presidents of Supreme Administrative Courts. Some delegations thought it expedient that the recommendation include the protection of collective interests, a possibility of withdrawing appeals and the principle of proportionality.
Type of courts
25. The delegations to the CJ-DA-GT agreed that the States had to be free to organise judicial review in the administrative field according to their legal tradition and culture: by specialised administrative Courts, by ordinary law courts or by a combination of the two. This question could be considered in detail in the recommendation's explanatory memorandum.
Independence and impartiality
26. The delegations to the CJ-DA-GT stressed that the independence and impartiality of judges ruling on administrative disputes was vital in guaranteeing effective protection for citizens' rights. The Italian and Andorran delegations pointed out that it was administrative judges who were at risk, more often than civil or criminal court judges, of pressure from administrative authorities. The recommendation should therefore expressly confirm that the principle of independence and impartiality of judges also applied to administrative court judges.
Access to judicial review of administrative action
27. The delegations to the CJ-DA-GT thought that the right to legal aid ensuring access to a judge, whichever judicial instance was competent for litigation with administrative authorities, had to be confirmed in the recommendation. A reasonable time should be allowed in which to apply to the judge. Reference should be made to the other recommendations of the Council of Europe in this area.
28. In this context, the CJ-DA's scientific expert mentioned administrative decisions that were not prejudicial to just one person but affected a community. Such decisions, which might concern the environment or consumer rights for example, should be subject to judicial review without the direct interest of any one person being jeopardised. The Italian and Dutch delegations wished the recommendation to include a provision relating to the instance required to uphold collective interests.
Fair trial
29. The CJ-DA's scientific expert stressed that any ruling on an administrative dispute should be pronounced in public and that reasons should be given for the judge's decision. He pointed out that certain administrative acts were not governed by Article 6 of the European Convention on Human Rights. Although the delegations thought that in general the principle of a public hearing was fundamental, some of them believed that the public hearing should take place at the request of the parties.
30. The Italian delegation added that the effective exercise of the right of defence and the principle of reasonable time should also be reflected in the recommendation's provisions. The delegations were divided over the mandatory involvement of a lawyer.
31. The delegations agreed that the principle of access to administrative files should be confirmed in the recommendation text.
32. Some delegations wondered whether it might be expedient to provide for urgent procedures that could be recommended in extreme situations in order to ensure effective protection for the rights of private individuals.
Effective judicial review
33. The delegations to the CJ-DA-GT stressed the importance of the principle of effective judicial review. They raised various issues that should be dealt with in the recommendation, including adequate provisional measures to ensure effective review, urgent measures, provisional protection, the judge's power to give directions, the power to substitute for the administrative authority, competence concerning execution.
34. In this context the Portuguese delegation wondered whether if might be expedient for the recommendation to mention review of the judge's decision (appeal). The Italian delegation preferred to speak of re-examining judicial decisions, which would make it possible to cover the different procedural forms. The delegations to the CJ-DA-GT did not adopt a common stance on this question.
Execution
35. It was proposed that the execution of judicial decisions not be dealt with in detail, as a recommendation had recently been drawn up on that subject.
Alternative means
36. The CJ-DA's scientific expert opened discussion on whether a reference to alternative dispute resolution means should be included in the recommendation.
37. The Portuguese delegation thought that alternative means should be mentioned since they were useful in improving the functioning of courts, but these means should not be an impediment to applications for judicial review. It would be desirable for legislations to provide for appeal to higher administrative authorities, which could be made before the case came before a judge, but that provision should not be expressed in restrictive terms and the principle of proportionality should be respected. This viewpoint was shared by the Italian delegation, which emphasised that alternative means of dispute resolution must not prevent court actions.
38. The Andorran delegation proposed that alternative means be referred to in the explanatory memorandum but not mentioned in the recommendation text. This view was backed by the Czech delegation, which preferred not to put the ombudsman institution, alternative means and courts on an equal footing in resolving administrative disputes.
39. The scientific expert agreed to prepare, for submission to the CJ-DA-GT, a working paper setting out proposals for the content of the draft recommendation on the judicial review of administrative action.
IV. REQUEST FOR AN OPINION TO THE CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE)
40. Given the subject-matter of the recommendation, the CJ-DA-GT considered the possibility of submitting the preliminary draft to the Consultative Council of European Judges (CCJE) for opinion.
V. EXCHANGE OF VIEWS ON QUESTIONS TO BE CONSIDERED BY THE CJ-DA AS FROM 2004
41. For the purpose of drawing up preliminary draft specific terms of reference for the CJ-DA for 2004 and 2005, its Working Group held an exchange of views on the questions to be examined by the committee as from 2004. A number of themes were identified during discussion, including:
- the remedying of administrative errors and public liability;
- criteria governing the expulsion of asylum seekers;
- privatisation;
- administrative contracts;
- the right to good governance;
- legitimate expectations;
- the rules applicable to administrative justice and its procedures.
42. In addition, the CJ-DA-GT proposed updating the provisions of Recommendation No. R (84) 15 on public liability and Recommendation No. R (80) 2 on the exercise of discretionary powers by administrative authorities.
43. The Secretariat pointed out that certain themes had already been covered by past recommendations or fell within the competence of other committees of experts.
44. The CJ-DA-GT instructed the Secretariat to list the themes that might be of interest to the CJ-DA for the preparation of its revised specific terms of reference for 2004-2005.
VI. CALENDAR OF FUTURE MEETINGS OF THE CJ-DA-GT
45. The CJ-DA-GT would hold its next meetings on 10-12 June 2003 and 3-5 November 2003, in Strasbourg.
APPENDIX I
LIST OF PARTICIPANTS
MEMBER STATES / ETATS MEMBRES
ANDORRA / ANDORRE
M. Pierre PASTOR VILANOVA, Magistrat, Seu de la Justicia, ANDORRA LA VELLA
BELGIUM / BELGIQUE
Mme Hrisanti PRASMAN, Conseiller adjoint, Service public fédéral Intérieur, Service de coordination et d’appui, Service Juridique, BRUXELLES
CZECH REPUBLIC / RÉPUBLIQUE TCHÈQUE
Mrs Taisia ČEBIŠOVÁ, Associate Professor, Faculty of Law, Charles University, PRAGUE
FINLAND / FINLANDE
Mr Matti NIEMIVUO, Deputy Director General, Ministry of Justice, GOVERNMENT
(Chair of the CJ-DA-GT / Président du CJ-DA-GT)
GREECE / GRECE
M. Théodore FORTSAKIS, Professeur de Droit Public à l’Université d’Athènes, ATHENES
IRELAND / IRLANDE
Mrs Caroline DALY, Advisory Counsel, Office of the Attorney General, Government Buildings, DUBLIN (Vice-Chair of the CJ-DA / Vice-Présidente du CJ-DA)
ITALY / ITALIE
Mr Vittorio RAGONESI, Magistrat de la Cour de Cassation, Ministère de la Justice, ROME (Chair of the CJ-DA / Président du CJ-DA)
LATVIA / LETTONIE
Mrs Jautrite BRIEDE, Lecturer of Administrative Law, Faculty of Law University of Latvia, RIGA
LIECHTENSTEIN Apologised/Excusé
MALTA / MALTE Apologised/Excusé
NETHERLANDS / PAYS-BAS
Mr Theo SIMONS, Senior Vice-President of the Administrative Court of Appeal, UTRECHT
PORTUGAL
Prof. Doutor Mário AROSO de ALMEIDA, Professeur universitaire de droit administratif, PORTO
ROMANIA / ROUMANIE
Mme Violeta Eugenia BELEGANTE, Conseiller juridique, Direction de l'élaboration des actes normatifs, des études et de la documentation, Ministère de la Justice, BUCAREST
SLOVENIA / SLOVÉNIE
Mr Samo GODEC, State Under-Secretary, Academy of Administration, LJUBLJANA
SPAIN / ESPAGNE
M. Antonio AMOROS, Conseiller Technique; Sous-Direction Générale des Affaires de Justice dans l´Union Européenne et les Organismes Internationaux, Ministère de Justice, MADRID
SWITZERLAND / SUISSE
M. Philippe GERBER, Collaborateur scientifique, Division I de la Législation, Office fédéral de la justice, Département fédéral de justice et police, BERNE
UKRAINE Apologised/Excusé
EXPERT SCIENTIFIQUE
Prof. David HARRIS, Professor of Public International Law, Nottingham University, NOTTINGHAM (United-Kingdom)
OBSERVERS WITH THE COUNCIL OF EUROPE/
OBSERVATEURS AUPRES DU CONSEIL DE L’EUROPE
HOLY SEE / SAINT SIEGE
Apologised/Excusé
JAPAN / JAPON
Apologised/Excusé
OBSERVERS WITH THE CJ-DA / OBSERVATEURS AUPRES DU CJ-DA
Organisations
EUROPEAN FEDERATION OF ADMINISTRATIVE JUDGES / FEDERATION EUROPEENNE DES JUGES ADMINISTRATIFS
M. Pierre VINCENT, Vice Président de la Fédération Européenne des Juges Administratifs, Président-Assesseur à la Cour Administrative d’Appel de Nancy, Cour administrative d'appel, NANCY (France)
M. Patrick KINTZ, Président de la Cour administrative d’appel de Nancy, NANCY (France)
Mme Elisabeth ROBINO, Conseiller, Tribunal Administratif de Strasbourg, STRASBOURG
INTERNATIONAL COMMISSION ON CIVIL STATUS / COMMISSION INTERNATIONALE DE L’ETAT CIVIL (CIEC)
Apologised/Excusé
SECRETARIAT DU CONSEIL DE L’EUROPE /
SECRETARIAT OF THE COUNCIL OF EUROPE
Directorate General of Legal Affairs, Department of Public Law/
Direction Générale des Affaires Juridiques, Service du droit public
www.coe.int/cj-da
M. Alexey KOZHEMYAKOV, Head of the Department / Chef du Service
Mme Danuta WIŚNIEWSKA-CAZALS, Secrétaire du CJ-DA
Mme Frédérique BONIFAIX, Assistante
INTERPRETATION
Mme Martine CARALY
Mme Cynera JAFFREY
Mme Corinne McGEORGE
APPENDIX II
AGENDA
1. Opening of the meeting / Ouverture de la réunion
2. Adoption of the agenda / Adoption de l’ordre du jour
3. Information by the Secretariat / Informations par le Secrétariat
4. Exchange of views on the relevant aspects of the judicial control of administrative acts with a view of the elaboration of the preliminary draft recommendation on this subject / Echange de vues sur les aspects pertinents du contrôle juridictionnel des actes administratifs en vue de l’élaboration de l’avant-projet de recommandation sur ce thème
Background documents / Documents de référence
Draft report of the 15th meeting of the Project Group on Administrative Law (CJ-DA) (Strasbourg, 27-29 November 2002) / Projet de rapport de la 15ème réunion du Groupe de projet sur le droit administratif (CJ-DA) (Strasbourg, les 27-29 novembre 2002) CJ-DA (2002) 6
Proceedings of the first Conference of the Presidents of Supreme Administrative courts in Europe (Strasbourg, 7-8 October 2002) / Actes de la première Conférence des Présidents des Juridictions Administratives Suprêmes en Europe (Strasbourg, les 7 et 8 octobre 2002)
CAS/SAC-I(2002) proceedings prov./actes prov.
5. Exchange of views on questions to be considered by the CJ-DA as for 2004 / Echanges de vues sur les questions devant être examninées par le CJ-DA à partir de 2004.
6. Calendar of the future meetings of the CJ-DA-GT / Calendrier des futures réunions du CJ-DA-GT
7. Any other business / Divers
APPENDIX III
SPECIFIC TERMS OF REFERENCE OF THE PROJECT GROUP ON ADMINISTRATIVE LAW
(CJ-DA)
1. Name of committee: PROJECT GROUP ON ADMINISTRATIVE
LAW (CJ-DA)
2. Type of committee: Committee of experts
3. Source of terms: European Committee on Legal Co-operation
(CDCJ)
4. Terms of reference:
Under the authority of the European Committee on Legal Co-operation (CDCJ), the CJ-DA is instructed:
1. In the framework of an activity regarding the execution of decisions in the administrative field, including decisions by administrative authorities as well as decisions by courts in the administrative field,
a. to identify key issues by conducting a survey regarding the situation in member States of the Council of Europe,
b. to prepare a summary report on the basis of the information gathered,
c. to consider the feasibility and usefulness of preparing an international instrument in this field, namely a draft recommendation of the Committee of Ministers.
2. In the framework of an activity regarding the possibility and scope of judicial review of administrative decisions in the member States,
a. to undertake preparatory work with a view to examining the situation in the Council of Europe member States, in the light of the case-law of the European Court of Human Rights,
b. to make recommendations to the Committee of Ministers on the basis of the undertaken activities.
5. Membership of the committee:
a. The governments of all member States are entitled to appoint members with the following desirable qualifications: senior officials having responsibilities as regards administrative law and administrative justice.
b. The Council of Europe's budget bears travelling and subsistence expenses for one expert per member State.
c. The European Community may send a representative, without the right to vote or defrayal of expenses, to meetings of the Committee.
d. The Observers with the Council of Europe may send representatives, without the right to vote or defrayal of expenses, to meetings of the Committee: Holy See, United States of America, Canada, Japan, Mexico.
e. The Observers to the CJ-DA may send representatives, without the right to vote or defrayal of expenses, to meetings of the Committee: Federal Republic of Yugoslavia, OECD, UN and its specialised organs, the International Commission on Civil Status, the European Public Law Centre and the European Federation of Administrative Judges.
6. Working structures and methods:
The CJ-DA may set up working parties and make use of expert-consultants.
7. Duration:
These terms of reference shall be reviewed before 31 December 2003.
APPENDIX IV
QUESTIONS FOR INCLUSION IN THE PRELIMINARY DRAFT
RECOMMENDATION ON THE POSSIBILITY AND SCOPE OF JUDICIAL
REVIEW OF ADMINISTRATIVE DECISIONS IN THE MEMBER STATES
I. General provisions
1. Objectives of the recommendation
(The recommendation should not list different existing practices, but set out the basic principles and refer to existing recommendations.)
2. Definitions
a) judicial review (review of the legality of acts, examination of the responsibility that the administration may incur as a result of the decisions it takes, review of the normative powers of the administration)
b) extent of the object of judicial review of administrative acts / administrative decisions
- (individual act – normative act,
- tacit act, decision – omission - administrative silence,
- political acts)
c) organisation of judicial review (competent body for carrying out the judicial review: a specialised administrative jurisdiction, any other jurisdiction)
d) types of judicial decisions (are they to replace administrative decisions? Tendency to broaden the scope of review)
e) the scope of judicial review of administrative acts (in relation to the discretionary power of the administration, in relation to the competence linked to it, protection of public interest)
f) exceptions)
II. Specific provisions
1. Procedural aspects
a) access to judicial review (for natural and legal persons), legal aid
b) access to administrative documentation
c) principles applying to administrative disputes
- fair trial – contradictory nature of the procedure, equality of arms, reasonable time, public hearing – or not, grounds for decisions, the effective exercise of the right to defence;
- principle of proportionality,
- principle of legitimate expectations)
d) effectiveness of judicial review of administrative acts
- urgent procedures,
- provisional protection,
- execution of judgments,
- power to give directions,
- appeal
e) measures for the prevention of abuse of the right to judicial review of administrative acts
1. Safeguards for the quality of judicial review (appropriate professional training)
2. Status of the judge hearing administrative disputes:
a) independence
- nomination,
- institutional safeguards of independence: the principle of independence of justice also applies to administrative justice, it must be preserved in the interests of those administered,
- specific professional career of the administrative judge)
b) impartiality (the specific role of the administrative judge in view of his/her double function: to take decisions and advise the administration)
III. The role of the case law of the European Court of Human Rights
Application of Article 6.1 of the European Convention on Human Rights (“everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”) to judicial review of administrative acts.
Application of Article 13 of the European Convention on Human Rights (“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committee by persons acting in an official capacity”) to judicial review of administrative acts.
Analysis of the decisions of the European Court of Human Rights as a means of bringing out the specific distinctive aspects of the development of administrative justice in recent years.
APPENDIX V
DRAFT STRUCTURE OF THE RECOMMENDATION
ON THE JUDICIAL REVIEW OF ADMINISTRATIVE ACTION
by David HARRIS
Scientific Expert of the CJ-DA-GT
Judicial Review of Administrative Action
A. Preamble to include:
- objectives of recommendation: to ensure the rule of law and respect for human rights; to ensure effective access to justice
- relationship between judicial review and alternative means
B. Definitions
1. Administrative act
2. Judicial review
C. General principles
1. All administrative acts should be subject to judicial review
2. Judicial review should be widely accessible to natural and legal persons
3. The independence and impartiality of the judiciary exercising the power of judicial review should be guaranteed
4. Judicial review should respect and ensure the procedural guarantees of Article 6.1 of the European Convention on Human Rights
5. Judicial review should be effective
D. Specific provisions
1. Scope of judicial review
- covers administrative acts generally (including silence)
- acts of state exception
- grounds of review: error of law, procedural illegality, lack of proportionality, legitimate expectation, etc
- powers of the court: provisional protection; powers to prohibit action, to quash an act; to require performance of a duty; to award compensation, etc; in some cases (where no discretion), power to replace administrative decision (?), no reformatio in pejius (?), etc
2. Access to judicial review
- locus standi
- legal aid
- time limit to apply
- abuse of right to apply (?)
3. Judicial review by an independent and impartial tribunal established by law
- can be specialist or ordinary court or tribunal
4. Right to a fair trial in accordance with Article 6.1 of the European Convention on Human Rights
- trial within a reasonable time
- public hearing and pronouncement of judgment
- equality of arms
- adversarial procedure
- access of administrative file (discovery of documents)
- reasons for decision
- right of appeal (?)
5. Execution of judgments
- speedy execution by the state
- sanctions against the administration for non-compliance
Note: references to existing CM recommendations to be inserted throughout
