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The Pan-European General Principles on Administrative Procedure and Procedural Rights

General

1. ECtHR judgment Church of Scientology Moscow v. Russia (18147/02), April 5, 2007

  • Moscow Justice Department refused to process at least four applications for re-registration, referring to the applicant's alleged failure to submit a complete set of documents […]. However, it did not specify why it deemed the applications incomplete. Responding to a written inquiry by the applicant's president, the Moscow Justice Department explicitly declined to indicate what information or document was considered missing, claiming that it was not competent to do so […]. The Court notes the inconsistent approach of the Moscow Justice Department on the one hand accepting that it was competent to determine the application incomplete but on the other hand declining its competence to give any indication as to the nature of the allegedly missing elements. Not only did that approach deprive the applicant of an opportunity to remedy the supposed defects of the applications and re-submit them, but also it ran counter to the express requirement of the domestic law that any refusal must be reasoned. By not stating clear reasons for rejecting the applications for reregistration submitted by the applicant, the Moscow Justice Department acted in an arbitrary manner. ECtHR considers that that ground for refusal was not “in accordance with the law”.
  • Examining the applicant's complaint for a second time, the District Court advanced more specific reasons for the refusal, the first of them being a failure to produce the original charter, registration certificate and the document indicating the legal address […]. With regard to this ground the Court notes that the Religions Act contained an exhaustive list of documents that were to accompany an application for re-registration. That list did not require any specific form in which these documents were to be submitted, whether as originals or in copies […]. According to the ECtHR settled case-law, the expression “prescribed by law” requires that the impugned measure should have a basis in domestic law and also that the law be formulated with sufficient precision to enable the citizen to foresee the consequences which a given action may entail and to regulate his or her conduct accordingly […]. The requirement to submit the original documents did not follow from the text of the Religions Act and no other regulatory documents which might have set out such a requirement were referred to in the domestic proceedings. […]. In these circumstances, the Court is unable to find that the domestic law was formulated with sufficient precision enabling the applicant to foresee the adverse consequences which the submission of copies would entail.
  • It was pointed out by the applicant, and not contested by the Government, that the Moscow Justice Department had in its possession the original charter and registration certification, as well as the document evidencing its address, which had been included in the first application for re-registration in 1999 and never returned to the applicant. In these circumstances, the District Court's finding that the applicant was responsible for the failure to produce these documents was devoid of both factual and legal basis.
  • The Nikulinskiy District Court also determined that the applicant had not produced information on the basic tenets of creed and practices of the religion. The District Court did not explain why the book was not deemed to contain sufficient information on the basic tenets and practices of the religion required by the Religions Act. The Court reiterates that, if the information contained in the book was not considered complete, it was the national courts' task to elucidate the applicable legal requirements and thus give the applicant clear notice how to prepare the documents […]. This had not, however, been done.
  • In any event, as the Court has found above, the applicant's failure to secure re-registration within the established time-limit was a direct consequence of arbitrary rejection of its earlier applications by the Moscow Justice Department.

o Right to Fair and Clear Treatment

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

  • Public authorities shall act in accordance with the principle of equality. They shall treat private persons who are in the same situation in the same way. They shall not discriminate between private persons on grounds such as sex, ethnic origin, religious belief or other conviction. Any difference in treatment shall be objectively justified. (Article 3)
  • Private persons have the right to request public authorities to take individual decisions which lie within their competence.
  • Decisions in response to requests to public authorities shall be taken within a reasonable time which can be defined by law. Remedies for cases where no such decision has been taken should be foreseen.
  • When such a request is made to an authority lacking the relevant competence, the recipient shall forward it to the competent authority where possible and advise the applicant that it has done so.
  • All requests for individual decisions made to public authorities shall be acknowledged with an indication of the expected time within which the decision will be taken, and of the legal remedies that exist if the decision is not taken. An acknowledgement in writing may be dispensed with where public authorities respond promptly with a decision. (Article 13)

o Objectivity and impartiality

  • Article 4 of the Recommendation on good administration
    • Public authorities shall act in accordance with the principle of impartiality.
    • They shall act objectively, having regard to relevant matters only.
    • They shall not act in a biased manner.
    • They shall ensure that their public officials carry out their duties in an impartial manner, irrespective of their personal beliefs and interests.

3. ECtHR judgment Ahmed and Others v. the United Kingdom (65/1997/849/1056), September 2, 1998

  • In order to retain their posts in local government, the applicants had to give up their political activities on behalf of political parties. They claimed that the requirement to do so breached their right to full participation in the electoral process, as guaranteed by Article 3 of the Protocol No. 1 to the Convention. The ECtHR found no violation, accepting that the restrictions served the legitimate purpose of securing the political impartiality of civil servants.

o Right to be heard

  • Article 14 of the Recommendation on good administration
  • If a public authority intends to take an individual decision that will directly and adversely affect the rights of private persons, and provided that an opportunity to express their views has not been given, such persons shall, unless this is manifestly unnecessary, have an opportunity to express their views within a reasonable time and in the manner provided for by national law, and if necessary with the assistance of a person of their choice.

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

  • In respect of any administrative act of such nature as is likely to affect adversely his rights, liberties or interests, the person concerned may put forward facts and arguments and, in appropriate cases, call evidence which will be taken into account by the administrative authority.
  • In appropriate cases the person concerned is informed, in due time and in a manner appropriate to the case, of the rights stated in the preceding paragraph.
  • In conformity with the underlying idea of the resolution - to achieve a high degree of fairness in the relations between the administration and the individual - this principle provides that the person concerned is given an opportunity to be heard during the administrative procedure: he may put forward facts and arguments and, where appropriate, call evidence. The person concerned will thus be enabled to participate in the procedure concerning an administrative act and can defend his rights, liberties and legitimate interests (explanatory memorandum)

5. ECtHR judgment Fischer v. Austria (16922/90), April 26, 1995

  • ECtHR stressed that unless there are exceptional circumstances that justify dispensing with a hearing the right to a public hearing under Article 6 implies a right to an oral hearing at least before one instance.
  • There do not appear to have been any exceptional circumstances that might have justified dispensing with a hearing. The Administrative Court was the first and only judicial body before which Mr Fischer’s case was brought; it was able to examine the merits of his complaints; the review addressed not only issues of law but also important factual questions. This being so, and having due regard to the importance of the proceedings in question for the very existence of Mr Fischer’s tipping business, the Court considers that his right to a "public hearing" included an entitlement to an "oral hearing".

o Right to information in an administrative procedure/ Transparency

  • Public authorities shall allow everyone access to official documents held by them. Access shall be granted without discrimination. Public authorities also have a duty to provide information about their work and decisions, and this duty extends to the publication of official documents.

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

  • ‘At his request, the person concerned is informed, before an administrative act is taken, by appropriate means, of all available factors relevant to the taking of that act.’
  • More in Chapter X

o Obligation of the administration to give reasons

  • Central feature of the right to a fair and free trial
  • Measures taken by a public authority in pursuance of its powers shall not be excessive in terms of their impact on the rights and interests of individuals, and shall only go as far as is necessary, and to the extent required, in order to achieve the desired goal
  • Article 17 of the Recommendation on good administration

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

  • Where an administrative act is of such nature as adversely to affect his rights, liberties or interests, the person concerned is informed of the reasons on which it is based. This is done either by stating the reasons in the act, or by communicating them, at his request, to the person concerned in writing within a reasonable time (VI - Statement of reasons)

8. ECtHR judgment Hirvisaari v. Finland (49684/99), September 27, 2001

  • Court judgments should adequately state the reasons on which they are based. Although Article 6 obliges courts to give sufficient reasons for their decisions, it does not require a detailed answer to every argument.
  • The brevity of the Pension Board’s reasoning on the applicant’s entitlement to a disability pension, which was endorsed by the domestic insurance court, was not regarded to be adequate.
  • ECtHR observed that the first part of the reasons given by the Pension Board merely referred to the relevant provisions of law, indicating the general conditions under which an employee is entitled to receive pension. In the second part of the reasoning it was mentioned that the applicant’s mental state had deteriorated during the autumn of 1997, the symptoms of his illness, however, being considered mild. On these grounds the Pension Board found the applicant partly capable of working as from 1 June 1997. While this brevity of the reasoning would not necessarily as such be incompatible with Article 6, in the circumstances of the present case the decision of the Board failed to satisfy the requirements of a fair trial.
  • In view of the fact that the applicant had earlier received a full invalidity pension, the reference to his deteriorating state of health in a decision confirming his right to only a partial pension must have left the applicant with a certain sensation of confusion. In these circumstances the reasoning cannot be regarded as adequate.

o Principle of judicial investigation

  • The authority shall determine the facts of the case ex officio and shall not be bound by the participants’ submissions
  • The authority shall take account of all circumstances that are important in an individual case (including those facts that are beneficial to the participants)
  • The authority shall not refer to illegal methods of investigation and circumvent the legal limits of investigation
  • The citizen involved may participate in the investigation and may claim evidence but he is not obliged to do so when it is not foreseen by law

o Right to participation

  • Everyone shall have the opportunity to participate in the preparation and implementation of administrative decisions by public authorities which affect his or her rights or interests
  • Article 15 of the Recommendation on good administration

9. ECtHR judgment Hatton and Others v. the United Kingdom (36022/97), July 8, 2003

  • The applicants living near Heathrow Airport complained that the government policy on night flights violated their rights under article 8. The ECtHR recognized the importance of ensuring that individuals are involved in the decision-making process leading to decisions which could affect their rights under the Convention