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The Pan-European General Principles on Legal Certainty and Protection of Legitimate Expectations

  • Legal certainty and nullity (inexistence) of administrative acts and contracts

1. ECtHR judgment Beian v. Romania (30658/05), December 6, 2007

  • The applicant was a Romanian national. He alleged in particular that he had not had a fair hearing in proceedings relating to the granting of a social benefit for forced labour he had been required to provide during his military service. He further complained of discriminatory treatment in relation to other people placed in a similar situation.
  • Where States decide to enact legislation to compensate victims of past injustices, it must be implemented with reasonable clarity and coherence in order to avoid, in so far as possible, legal uncertainty and ambiguity for the legal persons concerned. In that context, it should be stressed that uncertainty – be it legislative, administrative or judicial – is an important factor to be taken into account in assessing the State’s conduct.
  • The practice which developed within the country’s highest judicial authority is in itself contrary to the principle of legal certainty, a principle which is implicit in all the articles of the ECHR and constitutes one of the basic elements of the rule of law. Instead of fulfilling its task of establishing the interpretation to be followed, the High Court of Cassation and Justice itself became a source of legal uncertainty, thereby undermining public confidence in the judicial system.
  • Lack of certainty with regard to the case-law had the effect of depriving the applicant of any possibility of obtaining the benefits provided for by law while other persons in a similar situation were awarded those benefits.
  • Violation of Art. 6 § 1 and of Art. 14  in conjunction with Art. 1 of Protocol No. 1

2. ECtHR judgment Vrioni and Others v. Albania (2141/03), March 24, 2009

  • The Court found the above violations in this case on account of the quashing of the Supreme Court’s final judgment concerning restitution of property and given in the applicants’ favour.
  • By virtue of Article 1 the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. In this connection, it is the State’s responsibility to organize the legal system in such a way as to avoid the adoption of discordant judgments in parallel proceedings and to uphold the principle of legal certainty of final judgments, which was impaired by the use of the supervisory review procedure in the instant case.

3. ECtHR judgment Vusić v. Croatia (48101/07), October 1, 2010

  • Relying on Article 6 § 1 the applicant complained about the unfairness of proceedings in which he had sought to repossess a house. In particular, he alleged that the Supreme Court had declared his appeal on points of law admissible in February 2004 and then, a year later, had declared it inadmissible without any valid explanation.
  • ECtHR considers that the existence of the two contradictory decisions of the Supreme Court in the same case is incompatible with the principle of legal certainty. The role of a higher court in a Contracting Party is precisely to resolve conflicts of jurisprudence, avoid divergences and ensure uniform application of law. Therefore, by adopting a new decision on the same issue in the same proceedings and thereby effectively overruling its previous decision, without any reference to it or reasoning to the contrary, the Supreme Court in the instant case itself became the source of uncertainty. In this way it infringed the principle of legal certainty, inherent in Article 6 § 1 of the Convention.
  • Time limits for judicial review

4. Recommendation Rec(2004)20 on judicial review of administrative acts

  • Art. 2 para c: National and legal persons should be allowed a reasonably period of time in which to commence judicial review proceedings
  • Explanatory memorandum:
    • Time limit should not be too short, otherwise the parties may not be able to lodge an appeal against an administrative act.
    • 30 days seem to be the minimum
    • Time usually starts running from the moment the citizen is deemed to have taken cognizance of the act
    • No explication of the reasons of time limits.

5. Resolution (77)31 on the Protection of the Individual in Relation to the Acts of Administrative Authorities

  • Indication of remedies: where an administrative act which is given in written form adversely affects the rights, liberties or interests of the person concerned, it indicates the normal remedies against it, as well as the time-limits for their utilization.
  • Protection of legitimate expectations of the citizen

6. ECtHR judgment Moskal v. Poland (10373/05), September 15, 2009

  • The principle of legal certainty can (also) oppose the withdrawal of unlawful administrative decisions; hence the public interest in such a withdrawal has to be weighed against the interest of the affected party to maintain/uphold the decision. In doing so, one/the authority must ensure that the affected party will not suffer of disproportionate burdens, if the administrative decision is withdrawn.

7. ECtHR Stretch vs. UK judgement (44277/98), June 26, 2003

  • By subsequently declaring administrative contracts, which grant proprietary rights within the meaning of Article 1 of Protocol No. 1 to the ECHR to the individual (for example, the ones assigning State’s land to the individual), unlawful and not providing an adequate compensation thereof, the State risks of placing a disproportionate burden at the “ordinary citizens”, who were unaware of such errors committed by public authorities.

8. Recommendation CM/Rec(2007)7 on good administration

  • Article 6 - Principle of legal certainty
    • Public authorities shall act in accordance with the principle of legal certainty.
    • They may not take any retroactive measures except in legally justified circumstances.
    • They shall not interfere with vested rights and final legal situations except where it is imperatively necessary in the public interest.
    • It may be necessary in certain cases, in particular where new obligations are imposed, to provide for transitional provisions or to allow a reasonable time for the entry into force of these obligations.
  • Article 21 - Changes to individual administrative decisions: public authorities can amend or withdraw individual administrative decisions in the public interest if necessary, but, in doing so, they should have regard to the rights and interests of private persons.