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The Pan-European General Principles on Judicial Protection

  • Requirement of the existence of a comprehensive system of judicial control of administrative acts and other actions of the administration.
  • Differences in the conception of the relation between the administration and the judiciary also crop up in the question whether and to what extent courts should be empowered to not only void but also reform administrative acts. The further the powers of the judiciary reach, the greater the potential influence on administration, which of course does not mean that this potential will readily be unleashed in reality. A lot depends on what level of judicial (self-) restraint courts display while using their powers. A comparative examination of the ‘classical’ form of administration as reflected in its relations to the judiciary thus provides a complex picture. This suggests the conclusion that the Europeanization and internalization process has incorporated the various models of judicial oversight in very different ways.
  • ECtHR standard of protection: Article 6(1) ECHR provides that, in the determination of civil rights and obligations or of any criminal charge, everyone is entitled to a fair and public (and by implication an oral) hearing, within a reasonable time, by an independent and impartial tribunal established by law. While the Strasbourg institutions initially excluded administrative law proceedings from the term ‘the determination of civil rights and obligations’, the ECtHR has since included at least those that are pecuniary in nature, except where, as with taxation but not with social security, they ‘form part of the hard core of public authority prerogatives’. However, the rationale for drawing a distinction between those administrative proceedings that attract Article 6 guarantees and those that do not is unclear. Similarly, the expression ‘the proper administration of justice’ may refer both to normative standards and to administrative necessity. The Court takes the term ‘criminal charge’ to have ‘autonomous meaning’. That is to say, in order to prevent states’ neutralising Article 6 safeguards by re-designating criminal offences as mere administrative infractions, it decides for itself whether or not any given domestic proceeding involves a criminal charge.

1. Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts

  • The effectiveness of judicial review: If a tribunal finds that an administrative act is unlawful, it should have the powers necessary to redress the situation so that it is in accordance with the law. In particular, it should be competent at least to quash the administrative decision and if necessary to refer the case back to the administrative authority to take a new decision that complies with the judgment. It should also be competent to require of the administrative authority, where appropriate, the performance of a duty.

2. Recommendation Rec(2003)16 of the Committee of Ministers to member states on the execution of administrative and judicial decisions in the field of administrative law

  • Member states should ensure that administrative authorities implement judicial decisions within a reasonable period of time. In order to give full effect to these decisions, they should take all necessary measures in accordance with the law.
  • In cases of non‑implementation by an administrative authority of a judicial decision, an appropriate procedure should be provided to seek execution of that decision, in particular through an injunction or a coercive fine.
  • Member states should ensure that administrative authorities will be held liable where they refuse or neglect to implement judicial decisions. Public officials in charge of the implementation of judicial decisions may also be held individually liable in disciplinary, civil or criminal proceedings if they fail to implement them.

3. Recommendation R(89)8 of the Committee of Ministers to member states on provisional court protection in administrative matters

  • When a court is seized of a challenge to an administrative act, and the court has not yet pronounced its decision, the applicant may request the same court or another competent court to take measures of provisional protection against the administrative act.
  • The person concerned shall have the same right to request a competent court to take measures of provisional protection, prior to his challenging the act, in case of urgency or when an administrative complaint, the making of which does not have in itself any suspensive effect, has been lodged against the administrative act and has not yet been decided.

4. Venice Commission report – ‘Judicial review of administrative decisions the extent and limits of judicial review the efficiency of judicial review’

5. Resolution No. 3 of the 24th Conference of European Ministers of Justice on a general approach and means of achieving effective enforcement of judicial decisions, Moscow 2001