We use cookies to enable the full features of this site. By continuing to browse this site you agree to the use of cookies. Find out more by reading our data privacy statement

← back

The Pan-European General Principles on Discretion

  • The words “determination of his civil rights and obligations” in the sense of Art. 6 (1) ECHR include also disputes between the individual and administrative bodies concerning property rights, economic rights, monetary claims, rights to social benefits which may be considered as disputes involving public law under domestic law.
  • An “administrative body” deciding on “civil rights” is (in general) not a “tribunal” in the sense of Art. 6 (1) ECHR.
  • In cases where adjudicatory bodies determine disputes over “civil rights and obligations” within the meaning of Article 6 (1) ECHR proceedings before them shall be subject to subsequent control by a judicial body that has “full” jurisdiction in relation to both factual and legal matters

1. ECtHR JUDGMENT Lashmankin and Others v. Russia (57818/08 and 14 others), February 7, 2017

  • 23 applicants from different parts of Russia alleged that local authorities had imposed severe restrictions on peaceful assemblies planned by them, without any proper justification.
  • The Court finds that in each application the authorities did not give relevant and sufficient reasons for their proposals to change the location, time or manner of conduct of the applicants’ public events. These proposals were based on legal provisions which did not provide for adequate and effective legal safeguards against arbitrary and discriminatory exercise of the wide discretion left to the executive and which did not therefore meet the ECHR “quality of law” requirements.
  • In adopting the exceptionally drastic security measures during the public event the domestic authorities acted in an arbitrary and discriminatory manner.
  • Violation of Article 11 of the Convention (and 13 in conjunction with 11, 5 and 6)

2. ECtHR judgment Navalnyy v. Russia (29580/12), November 15, 2008

  • The applicant was a Russian national. He is a political activist, opposition leader, anti-corruption campaigner and blogger. Mr Navalnyy was arrested on seven occasions between 2012 and 2014 at different public gatherings
  • Relying on Article 5 (right to liberty) of the ECHR, Mr Navalnyy complained that the seven arrests (and two instances of pre-trial detention) were unlawful and arbitrary deprivations of liberty.
  • Among others, relying on Article 11 (right to freedom of assembly), Mr Navalnyy complained that the authorities had repeatedly interrupted peaceful gatherings by arresting, prosecuting and convicting him.
  • ECtHR considers that there is a link between these failures and the previously observed structural inadequacy in the regulatory framework, which provides for excessively restrictive formal requirements for organising certain public gatherings, as identified in Lashmankin and Others (§§ 471-77). Thus, the broad interpretation of what constitutes a gathering subject to notification and the lack of tolerance towards gatherings which do not comply with the procedure highlights yet another dimension to the aforementioned structural problem. The absence of safeguards circumscribing the authorities’ discretion in interfering with peaceful public gatherings which are not causing “disorder” or nuisance is aggravated by a broad interpretation in practice of what constitutes a “gathering subject to notification” and by excessively wide discretion in imposing restrictions on such gatherings through rigid enforcement involving, as it did, immediate arrest and deprivation of liberty as well as sanctions of a criminal nature as described above. It may even be questioned whether, owing to these characteristics of the applicable legal framework, any pursuit of national remedies would also be ineffective and devoid of any prospects of success.
  • Violation of Article 11 (apart from that 5§1, 6§1, 18)

3. ECtHR judgment Sigma Radio Television Ltd v. Cyprus (32181/04), July 21, 2011

  • ECtHR reiterates that even where an adjudicatory body, including an administrative one as in the present case, which determines disputes over “civil rights and obligations” does not comply with Article 6 § 1 in some respect, no violation of the Convention can be found if the proceedings before that body are subject to subsequent control by a judicial body that has “full” jurisdiction and does provide the guarantees of Article 6 § 1
  • The requirement that a court or tribunal should have “full jurisdiction” will be satisfied where it is found that the judicial body in question has exercised “sufficient jurisdiction” or provided “sufficient review” in the proceedings before it
  • In assessing the sufficiency of a judicial review available to an applicant, the ECtHR will have regard to the powers of the judicial body in question and to such factors as:
    1. the subject-matter of the decision appealed against, in particular, whether or not it concerned a specialized issue requiring professional knowledge or experience and whether it involved the exercise of administrative discretion and if, so, to what extent,
    2. the manner in which that decision was arrived at, in particular, the procedural guarantees available in the proceedings before the adjudicatory body,
    3. the content of the dispute, including the desired and actual grounds of appeal.
  • As to the subject-matter of the decision appealed against, the ECtHR notes that the decisions challenged before the Supreme ECtHR were taken by the CRTA, which was set up to regulate broadcasting pursuant to, and to monitor compliance with, the relevant legislation. In its decisions the CRTA had found that the applicant had violated certain provisions of the Law and Regulations in various broadcasts. Their subject matter was therefore a classic exercise of administrative discretion in the specialized area of law concerning broadcasting taken in the context of ensuring standard setting and compliance with the relevant legislation and regulations pursuant to public interest aims.
  • In connection with the manner in which the decisions were arrived at, the ECtHR observes, as it noted above, that a number of uncontested procedural guarantees were available to the applicant in the proceedings before the CRTA: the applicant was given details of the probable violation or the complaint made against it and the decisions were arrived at after a hearing had been held. The applicant was able to make written submissions and/or oral submissions during the hearing of the cases although it chose not to do so in some of the proceedings. Further, it was open to the applicant to make a wide range of complaints in the context of the judicial review proceedings before the CRTA.
  • The scope of the review of the Supreme Court in the judicial review proceedings in the present case was sufficient to comply with Article 6 of the Convention.

4. ECtHR judgment Ivanova and Cherkezov v. Bulgaria (46588/15), April 21, 2016

  • The assessment of the necessity of the interference in cases concerning the loss of one’s home for the promotion of a public interest involves not only issues of substance but also a question of procedure: whether the decision-making process was such as to afford due respect to the interests protected under Article 8 of the Convention. Since the loss of one’s home is a most extreme form of interference with the right to respect for the home, any person risking this – whether or not belonging to a vulnerable group – should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under that Article.
  • If the person concerned contests the proportionality of the interference on the basis of such arguments, the courts must examine them carefully and give adequate reasons in relation to them the interference cannot normally be regarded as justified simply because the case falls under a rule formulated in general and absolute terms. The mere possibility of obtaining judicial review of the administrative decision causing the loss of the home is thus not enough; the person concerned must be able to challenge that decision on the ground that it is disproportionate in view of his or her personal circumstances
  • It is true that the relaxation of an absolute rule may entail risks of abuse, uncertainty or arbitrariness in the application of the law, expense, and delay. But it can surely be expected that the competent administrative authorities and the administrative courts, which routinely deal with various claims relating to the demolition of illegal buildings and have recently showed that they can examine such claims in the light of Article 8 of the Convention will be able to tackle those risks, especially if they are assisted in this task by appropriate parameters or guidelines. Moreover, it would only be in exceptional cases that those concerned would succeed in raising an arguable claim that demolition would be disproportionate in their particular circumstances
  • The proceedings conducted in this case did not meet the above-mentioned procedural requirements, as set out in paragraph 53.
  • Breach of Article 8 of the Convention if the order for the demolition of the house in which the applicants live were to be enforced without such review.

5. Recommendation No R(80)2 concerning the Exercise of Discretionary Powers by Administrative Authorities