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The Pan-European General Principles on Legality of Administration

1. Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration

  • Public authorities shall act in accordance with the law. They shall not take arbitrary measures, even when exercising their discretion.
  • They shall comply with domestic law, international law and the general principles of law governing their organisation, functioning and activities.
  • They shall act in accordance with rules defining their powers and procedures laid down in their governing rules.
  • They shall exercise their powers only if the established facts and the applicable law entitle them to do so and solely for the purpose for which they have been conferred. (Art. 2)

2. ECtHR judgment Iatridis v. Greece (31107/96), March 25, 1999

  • ‘The ECtHR reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that the States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention […] and entails a duty on the part of the State or other public authority to comply with judicial orders or decisions against it […]. It follows that the issue of whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights […] becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary.’ (para. 58)

3. ECtHR judgment Leela Förderkreis E.V. and Others v. Germany (58911/00), November 6, 2008

  • The remaining applicant associations maintained that the Government’s information campaign had had no legal basis. They considered that the principle of proportionality did not set sufficiently clear limits to the exercise of the Government’s discretionary power where interferences with the freedom of religion derived directly from other constitutional rights.
  • Further, as regards the words “in accordance with the law” and “prescribed by law” which appear in Articles 8 to 11 of the Convention, the ECtHR observes that it has always understood the term “law” in its “substantive” sense, not its “formal” one […]. “Law” must be understood to include both statutory law and judge-made “law” […]. In sum, the “law” is the provision in force as the competent courts have interpreted it.
  • The ECtHR notes that in its decision of 26 June 2002 the Federal Constitutional Court found that the legal basis of the interference under consideration was provided by the Basic Law. The duty of imparting information on subjects of public concern was one of the governmental tasks directly assigned by the Basic Law to the Government. The ECtHR accepts that it can prove difficult to frame law with a high precision on matters such as providing information, where the relevant factors are in constant evolution in line with developments in society and in the means of communication, and tight regulation may not be appropriate. In these circumstances, the ECtHR considers that the Government’s information-imparting role did not require further legislative concretisation.
  • As to the applicant associations’ argument that the legislature had failed to enact adequate legal rules to protect them against arbitrary interferences by public authorities with their right to manifest their religion or belief, the Court observes that, according to the Federal Constitutional Court, the Basic Law did not grant an unfettered discretion to the Government when imparting information. Statements affecting the very essence of the right guaranteed by Article 4 §§ 1 and 2 of the Basic Law must be appropriate in relation to the cause for concern. The State had to observe neutrality in religious or philosophical matters and was forbidden from depicting a religious or philosophical group in a defamatory or distorted manner.
  • Having regard to the above, the ECtHR accepts that the interference with the applicant associations’ right to manifest their religion may be regarded as being “prescribed by law”. (paras 87-91)

4. ECtHR judgement Bronikowski v. Poland (31443/96), June 22, 2004

  • The case concerned the so-called “Bug River claims”
  • Whilst the ECtHR accepts that the radical reform of the country's political and economic system, as well as the state of the country's finances, may justify stringent limitations on compensation for the Bug River claimants, the Polish State has not been able to adduce satisfactory grounds justifying, in terms of Article 1 of Protocol No. 1, the extent to which it has continuously failed over many years to implement an entitlement conferred on the applicant, as on thousands of other Bug River claimants, by Polish legislation.
  • In the present case, as ascertained by the Polish courts and confirmed by the ECtHR’s analysis of the respondent State's conduct, the authorities, by imposing successive limitations on the exercise of the applicant's right to credit, and by applying the practices that made it unenforceable and unusable in practice, rendered that right illusory and destroyed its very essence.
  • Violation of Article 1 of Protocol No. 1 to the Convention