CJ–DA–GT (2003) 6
WORKING PARTY OF THE PROJECT GROUP
ON ADMINISTRATIVE LAW
(CJ-DA-GT)
2nd meeting
Strasbourg, 10 – 12 June 2003
MEETING REPORT
FOREWORD
At this meeting, the CJ-DA-GT in particular:
a. approved the structure of the preliminary draft recommendation on judicial control of administrative acts (see Part II below) ;
b. decided that the Principles set out in the draft recommendation should be enlarged on in the explanatory memorandum (see Part II below) ;
c. chose the themes for consideration with a view to the preparation of the CJ-DA’s draft terms of reference for 2004-2005 (see Part III, paragraph 22 below);
Secretariat memorandum drawn up by
the Directorate General of Political Affairs
TABLE OF CONTENTS
Page
I. INTRODUCTION 3
II. PRELIMINARY DRAFT RECOMMENDATION ON THE JUDICIAL REVIEW
OF ADMINISTRATIVE ACTS 3
- Structure and title
- Definitions
- Principles
III. FUTURE ACTIVITIES OF THE CJ-DA 5
IV. DATES OF THE NEXT CJ-DA-GT MEETING 5
APPENDICES
APPENDIX I: LIST OF PARTICIPANTS 6
APPENDIX II: AGENDA 9
APPENDIX III: PRELIMINARY DRAFT RECOMMENDATION ON THE
JUDICIAL REVIEW OF ADMINISTRATIVE ACTS 11
APPENDIX IV: PRELIMINARY DRAFT RECOMMENDATION ON THE
JUDICIAL CONTROL OF ADMINISTRATIVE ACTS
AS AMENDED BY THE CJ-DA-GT AT ITS 2nd MEETING 14
I. INTRODUCTION
1. The Working Party of the Project Group on Administrative Law (CJ-DA-GT) held its second meeting from 10 to 12 June 2003 at the Council of Europe headquarters in Strasbourg, with Mr Matti Niemivuo (Finland) in the Chair. The list of participants appears in Appendix I to this report.
2. The CJ-DA-GT discussed and adopted the draft agenda, as set out in Appendix II.
3. The CJ-DA-GT thanked Mr Philippe Gerber, delegate for Switzerland, for representing the CJ-DA at the 78th meeting of the European Committee on Legal Co-operation (CDCJ) and answering questions from some of its members concerning the contents of the draft Recommendation on execution of administrative and judicial decisions in the field of administrative law
4. The CJ-DA-GT welcomed the approval of this draft Recommendation by the CDCJ and noted that the draft would be submitted to the Committee of Ministers for adoption in September 2003.
5. The Secretariat pointed out that at its first meeting in 2003, the CJ-DA-GT had raised the question of the expediency of drawing up an additional protocol to the European Convention on Human Rights on the judicial control of administrative action, given that some administrative acts might fall outside the scope of Article 6 and a recommendation had no binding force, and that it had decided that the recommendation which was currently being drawn up might serve as a basis for that protocol. The Secretariat pointed out that the decision to draft an additional protocol to the ECHR should normally be taken by the Steering Committee for Human Rights (CDDH). If the CJ-DA-GT thought that an additional protocol on the judicial control of administrative action was necessary to improve human rights protection, the CDCJ could inform the CDDH and ask to be involved in or consulted on any provisions that might concern it.
II. PRELIMINARY DRAFT RECOMMENDATION ON THE JUDICIAL REVIEW OF ADMINISTRATIVE ACTS
6. In keeping with the instructions given by the Project Group on Administrative Law (CJ-DA) (see doc. CJ-DA (2002) 6, paragraph 29), the CJ-DA-GT resumed its work and examined the preliminary draft recommendation on the judicial review of administrative acts (see doc. CJ-DA-GT (2003) 4).
7. The CJ-DA-GT delegations thanked Professor David Harris, their expert, for his contribution, which they considered essential in making progress with this preliminary draft recommendation.
Structure and title
8. The CJ-DA-GT delegations approved the structure of the preliminary draft recommendation as they felt that it reflected the objectives of the recommendation with clarity and precision.
9. Following a discussion, the Working Party decided to retain the French title of the recommendation proposed in the preliminary draft and to change the English title to: “Judicial control of administrative acts”.
Definitions
10. The CJ-DA-GT delegations decided that the definition of the two concepts “administrative act” and “judicial control” should be included in the recommendation. Following the discussion, a drafting committee, made up of the delegations of Andorra, Greece, Italy and Portugal, drafted the two definitions (see Appendix III paragraph A ).
administrative act
11. The CJ-DA-GT delegations agreed that the definition of administrative act set out in Resolution (77) 31 was insufficient for the purposes of the present recommendation. They opted for a broad definition, covering both individual acts and standard-setting acts or decisions laying down a general rule as well as physical administrative acts which affected the rights or interests of physical or legal persons.
12. They discussed whether administrative contracts should also be included in the definition. As they were divided on this question, they deferred their decision until the next meeting.
13. The CJ-DA-GT thought that it was necessary to clearly point out in the recommendation that administrative silence, or failure to act, should also be subject to judicial control.
14. The CJ-DA-GT decided that the explanatory memorandum should include a detailed description of the types of administrative acts to be covered by the recommendation.
Judicial control
15. The CJ-DA-GT delegations pointed out that, with a view to strengthening the rule of law, the administrative authorities should be subject to judicial control. The definition should therefore mention that the courts were entitled to verify the conformity of administrative acts with the corresponding law either by checking their lawfulness or by considering what responsibility might be incurred. Access to the courts should protect individuals against inequality of treatment by the administrative authorities.
16. Following proposals to replace the word “judge” by “tribunal”, the CJ-DA-GT decided to resume discussion of the definition of judicial control at its next meeting.
Principles
17. The CJ-DA-GT discussed this part of the recommendation and made a number of changes to the wording (see Appendix IV, part B). It instructed the expert to complete paragraph 4 “The right to a fair trial under Article 6.1 European Convention on Human Rights” and decided that the principles should be enlarged upon in the explanatory memorandum.
18. The CJ-DA-GT instructed the Secretariat to draft the explanatory memorandum in consultation with the expert.
III. FUTURE ACTIVITIES OF THE CJ-DA
19. The CJ-DA-GT noted that the European Committee on Legal Co-operation (CDCJ) had approved its draft revised specific terms of reference for 2004, which would be submitted to the Committee of Ministers for adoption in September 2003 (see doc. CJ-DA (2003) 1 rev for the draft terms of reference).
20. It also noted that at the end of the draft terms of reference it was called on “to identify in 2004 for the attention of the CDCJ the areas of political interest which justify high priority as regard specific activities aiming at the strengthening of the right to a good administration in the interest of private persons”.
21. The CJ-DA-GT considered the proposed themes for the specific activities intended to strengthen the right to good administration (see doc. CJ-DA (2003) 5). It decided to remove the themes concerning administrative justice.
22. At the end of the discussion, the following points were selected for consideration by the CJ-DA with a view to the drafting of its specific terms of reference for 2004-2005 :
a. Prevention of illegal acts / illegal decisions,
b. Compensation for illegal acts/decisions by the public authorities (unlawful administrative acts, the administrative authorities’ responsibility for illegal acts),
c. Administrative contracts / agreements,
d. Privatisation of public activities (transfer of administrative tasks for execution by private enterprises),
e. Legitimate expectations,
f. Public authorities’ response to social exclusion and inequality,
g. Women and the public authorities (access, promotion, career prospects, positive discrimination, family life, etc),
h. Codification of administrative procedure in Europe and its implementation,
i. Expropriation,
j. Guidelines for privatised public services.
23. The CJ-DA-GT instructed the Secretariat to briefly expand on the chosen themes.
IV. DATES OF THE NEXT CJ-DA-GT MEETING
24. The next CJ-DA-GT meeting would take place from 3 to 5 November 2003 at the Council of Europe headquarters in Strasbourg.
APPENDIX I
WORKING PARTY OF THE PROJECT GROUP ON ADMINISTRATIVE LAW/
GROUPE DE TRAVAIL DU GROUPE DE PROJET SUR LE DROIT ADMINISTRATIF
(CJ-DA-GT)
2nd meeting / 2ème réunion
Strasbourg, 10-12 June / juin 2003
LIST OF PARTICIPANTS / LISTE DES PARTICIPANTS
MEMBER STATES / ETATS MEMBRES
ANDORRA / ANDORRE
M. Pierre PASTOR VILANOVA, Magistrat, Seu de la Justicia, Batllia d'Andorra, Avda de Tarragona, ANDORRA LA VELLA
AZERBAIJAN / AZERBAIDJAN
Mr Chingiz GASIMOV, Director of Analytical Department, Ministry of Justice, Inskaatchilar Str. 1, 370073 BAKU
BELGIUM / BELGIQUE
Mme Hrisanti PRASMAN, Conseiller adjoint, Service public fédéral Intérieur, Service de coordination et d’appui, Service Juridique, rue Royale 66, 1000 BRUXELLES
CZECH REPUBLIC / RÉPUBLIQUE TCHÈQUE
Mrs Taisia ČEBIŠOVÁ, Associate Professor, Faculty of Law, Charles University, Curieovych 7, 110 00 PRAHA 1
FINLAND / FINLANDE
Mr Matti NIEMIVUO, Deputy Director General, Ministry of Justice, PO. Box 25, 00023 GOVERNMENT
(Chair of the CJ-DA-GT / Président du CJ-DA-GT)
GREECE / GRECE
M. Théodore FORTSAKIS, Professeur de Droit Public à l’Université d’Athènes, 52 rue Skoufa - ATHENES 10672
IRELAND / IRLANDE
Mrs Caroline DALY, Advisory Counsel, Office of the Attorney General, Government Buildings, Upper Merrion Street, DUBLIN 2 (Vice-Chair of the CJ-DA / Vice-Présidente du CJ-DA)
ITALY / ITALIE
Mr Vittorio RAGONESI, Magistrat de la Cour de Cassation, Ministère de la Justice, Via Arenula 70, 00186 ROME (Chair of the CJ-DA / Président du CJ-DA)
LATVIA / LETTONIE
Mrs Jautrite BRIEDE, Lecturer of Administrative Law, Faculty of Law University of Latvia, Raina Bulv. 19, 458. kab, 1586 RIGA
LIECHTENSTEIN - Apologised/Excusé
LITHUANIA/LITUNANIE - Apologised/Excusée
MALTA / MALTE - Apologised/Excusé
NETHERLANDS / PAYS-BAS
Mr Theo SIMONS, Senior Vice-President of the Administrative Court of Appeal, Postbus 16002, 3500 DA UTRECHT
PORTUGAL
M. Mário AROSO de ALMEIDA, Professeur universitaire de droit administratif, Rua Diogo Botelho 1327, 4169 PORTO
ROMANIA / ROUMANIE
Mme Violeta Eugenia BELEGANTE, Conseiller juridique, Direction de l'élaboration des actes normatifs, des études et de la documentation, Ministère de la Justice, 17 rue Appolodor, secteur 5, BUCAREST
SLOVENIA / SLOVÉNIE - Apologised/Excusée
Mrs Barbara KOZELJ, Counsellor, Office for organisation and development of administration
Šmartinska 152, 1000 LJUBLJANA
SPAIN / ESPAGNE - Apologised/Excusée
SWITZERLAND / SUISSE
M. Philippe GERBER, Collaborateur scientifique, Division I de la Législation, Office fédéral de la justice, Département fédéral de justice et police, Bundeshaus West, 3003 BERNE
UKRAINE Apologised/Excusée
SCIENTIFIC EXPERT / EXPERT SCIENTIFIQUE
Prof. David HARRIS, Professor of Public International Law, Nottingham University, University Park, NOTTINGHAM M67 2RD (United-Kingdom)
OBSERVERS WITH THE COUNCIL OF EUROPE/
OBSERVATEURS AUPRES DU CONSEIL DE L’EUROPE
HOLY SEE / SAINT SIEGE - Apologised/Excusé
JAPAN / JAPON
M. Pierre DREYFUS, Assistant, Consulate General of Japan, « Tour Europe », 20 Place des Halles, 67000 STRASBOURG
OBSERVERS WITH THE CJ-DA / OBSERVATEURS AUPRES DU CJ-DA
EUROPEAN FEDERATION OF ADMINISTRATIVE JUDGES / FEDERATION EUROPEENNE DES JUGES ADMINISTRATIFS
M. Pierre VINCENT, Vice Président de la Fédération Européenne des Juges Administratifs, Président-Assesseur à la Cour Administrative d’Appel de Nancy, Cour administrative d'appel, 6, rue du Haut Bourgeois, 54000 Nancy
Mme Elisabeth ROBINO, Conseiller, Tribunal Administratif de Strasbourg, 31 av. de la Paix , 67070 STRASBOURG
INTERNATIONAL COMMISSION ON CIVIL STATUS / COMMISSION INTERNATIONALE DE L’ETAT CIVIL (CIEC)
Apologised/Excusé
SECRETARIAT DU CONSEIL DE L’EUROPE /
SECRETARIAT OF THE COUNCIL OF EUROPE
Directorate General of Legal Affairs, Department of Public Law/
Direction Générale des Affaires Juridiques, Service du droit public
www.coe.int/cj-da
M. Alexey KOJEMIAKOV, Head of the Department / Chef du Service
Mme Danuta WIŚNIEWSKA-CAZALS, Secrétaire du CJ-DA
Mrs Wendy POLVECHE, Assistant
Mme Frédérique BONIFAIX, Assistante
Mme Marie-Rose PREVOST, Assistante
INTERPRETATION
Mr Philippe QUAINE
Mr Christopher TYCZKA
Mme Monique PALMIER
APPENDIX II
WORKING PARTY OF THE PROJECT GROUP ON ADMINISTRATIVE LAW/
GROUPE DE TRAVAIL DU GROUPE DE PROJET SUR LE DROIT ADMINISTRATIF
(CJ -DA-GT)
2nd Meeting/2ème réunion
Strasbourg, 10-12 June / juin 2003
AGENDA /ORDRE DU JOUR
1. Opening of the meeting / Ouverture de la réunion
2. Adoption of the agenda / Adoption de l’ordre du jour
3. Information by the Secretariat / Informations par le Secrétariat
4. Preparation of the preliminary draft recommendation on the judicial control of administrative action / Elaboration de l’avant-projet de recommandation sur le contrôle juridictionnel des actes de l’administration
Working document / document de travail
Preliminary draft Recommendation on the judicial control of administrative action prepared by the scientific expert and the Secretariat / Avant-projet de recommandation sur le contrôle juridictionnel des actes de l’administration préparé par l’expert scientifique et le Secrétariat
CJ-DA-GT (2003) 4
Background documents / Documents de référence
Draft report of the 1st meeting of the Working Party of the Project Group on Administrative Law (CJ-DA-GT) (Strasbourg, 10-12 March 2003) / Projet de rapport de la 1ère réunion du Groupe de travail du Groupe de projet sur le droit administratif (CJ-DA-GT) (Strasbourg, les 10-12 mars 2003)
CJ-DA-GT (2003) 1
Questions for inclusion in the preliminary draft Recommendation on the judicial review of administrative action / Questions à inclure dans l’avant-projet de Recommandation sur le contrôle juridictionnel des actes de l’administration
CJ-DA-GT (2003) 2
Draft structure of the recommendation on the Judicial Review of Administrative Action / Projet de structure de la Recommandation sur le contrôle juridictionnel des actes de l’administration
CJ-DA-GT (2003) 3
Draft report of the 15th meeting of the Project Group on Administrative Law (CJ-DA) (Strasbourg, 27-29 November 2002) / Projet de rapport de la 15ème réunion du Groupe de projet sur le droit administratif (CJ-DA) (Strasbourg, les 27-29 novembre 2002)
CJ-DA(2002)6
Proceedings of the first Conference of the Presidents of Supreme Administrative courts in Europe (Strasbourg, 7-8 October 2002) / Actes de la première Conférence des Présidents des Juridictions Administratives Suprêmes en Europe (Strasbourg, les 7 et 8 octobre 2002)
CAS/SAC-I(2002) proceedings prov./actes prov.
5. Exchange of views on the areas of political interest which justify high priority as regard specific activities aiming at the strengthening of the right to a good administration in the interest of private persons / Echanges de vues sur les domaines d’intérêt politique qui justifient de hautes priorités en matière d’activités spécifiques visant le renforcement du droit à une bonne administration dans l’intérêt des personnes privées
Background documents / Documents de référence
Draft specific terms of reference of the CJ-DA for 2004 as approved by the CDCJ / Projet de mandat spécifique du CJ-DA pour 2004 tel qu’approuvé par le CDCJ
CJ-DA (2003) 1 rev.
Information on the draft specific terms of reference of the CJ-DA for 2004-2005 / Information concernant le projet de mandat spécifique du CJ-DA pour 2004-2005
CJ-DA (2003) 2
6. Date of the future meeting of the CJ-DA-GT / Dates de la prochaine réunion du CJ-DA-GT
7. Any other business / Divers
APPENDIX III
PRELIMINARY DRAFT RECOMMENDATION
ON THE JUDICIAL REVIEW OF ADMINISTRATIVE ACTION
Preamble
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to achieve greater unity among its members;
Recalling Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” and the relevant case law on administrative disputes of the European Court of Human Rights;
Considering that effective judicial control of administrative acts to protect the interests of individuals is an essential element of the system of protection of human rights;
Taking into account the results of the monitoring of respect by members states of their commitments on the subject of “functioning of the judicial system” and of the decision taken by the Ministers’ Deputies at their 693rd meeting on 12 January 2000 on the possibility and scope of judicial control of administrative decisions;
In the light of the conclusions of the 1st Conference of Presidents of supreme administrative courts in Europe, which had as its theme “The possibility and scope of the judicial control of administrative decisions in member states” (Strasbourg on 7-8 October 2002);
Taking into account the legal instruments of the Council of Europe in the field of administrative law and in particular Resolution (77) 31 on the protection of the individual in relation to the acts of administrative authorities;
Bearing in mind Recommendation No. R (94) 12 on the independence, efficiency and role of judges;
Wishing to strengthen the rule of law and human rights, fundamental values of the legal systems of Council of Europe member states;
Wishing to ensure effective access to justice;
Wishing to indicate to member states the principles applied to judicial control of administrative acts;
Convinced that other methods of control of administrative acts, which may include internal appeal to the administrative authorities and control by the ombudsman as well as appeal to alternatives to litigation set out in Recommendation No. R (2001) 9 on alternatives to litigation between administrative authorities and private parties, are useful for improving the functioning of jurisdictions and for the effective protection of everyone’s rights, but that these means cannot prevent the appeal to judicial control;
Recommends that the governments of member states apply, in their national legal system and in practice, the principles annexed to this recommendation.
Appendix
A. Definition(s)
An “administrative act” is, in accordance with Resolution (77) 31, an individual measure or decision which is taken in the exercise of public authority and which is of such a nature as directly to affect the rights, liberties or interests of any physical or legal person
( ? define judicial review)
B. Principles
1. Access to judicial review
a. Physical and legal persons should be able to obtain judicial review of administrative acts that directly affect their rights, liberties or interests.
(? Access by third parties. ? provide for public interest litigation by environmental groups, consumer groups, etc)
b. The cost of judicial review should not be such as to discourage applications. Legal aid should be available to indigent persons where the interests of justice require it
c. Applications for judicial review may be subject to reasonable time limits
d. (? a right of appeal to a higher court)
e. (? internal remedies within the administration should be availed of before resort to judicial review)
2. The scope of judicial review
a. All administrative acts should be subject to judicial review, including acts involving the exercise of discretionary power.
b. Administrative silence, or failure to act, should be subject to judicial review
c. Administrative sanctions (fines or imprisonment) imposed by a public official for regulatory or other minor offences should be subject to judicial review
d. The grounds for judicial review should be lack of competence, procedural impropriety, violation of the law, and abuse of power
3. An independent and impartial tribunal
a. Judicial review should be conducted by an independent and impartial tribunal established by law
b. The tribunal may be a specialist administrative tribunal or a part of the ordinary system of courts
c. The independence and impartiality of the tribunal should be guaranteed in accordance with the terms of Recommendation (94) 12
4. The right to a fair trial under Article 6.1 European Convention on Human Rights
a. The hearing of the application should be completed by the tribunal within a reasonable time
b. There should be equality of arms between the parties to the proceedings
c. The applicant should have access to the administrative file (discovery of documents)
d. The proceedings should be adversarial in nature
e. The proceedings should be conducted in public, unless the public interest dictates otherwise
f. Judgment should be pronounced in public
g. Reasons should be given for the judgment
5. The effectiveness of judicial review
a. The tribunal should be competent to grant provisional measures of protection pending the outcome of the proceedings
b. The tribunal should be competent to prohibit the taking of an administrative decision, to quash a decision that has already been taken or to require that a duty be performed. The tribunal should also have jurisdiction to award compensation in appropriate cases
c. The tribunal should have the power to sanction an administrative authority that fails to comply with its decision within a reasonable time
APPENDIX IV
PRELIMINARY DRAFT RECOMMENDATION
ON JUDICIAL CONTROL OF ADMINISTRATIVE ACTS
as amended by the CJ-DA-GT at its 2nd meeting
Preamble
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to achieve greater unity among its members;
Recalling Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” and the relevant case law on administrative disputes of the European Court of Human Rights;
Considering that effective judicial control of administrative acts to protect the rights and interests of individuals is an essential element of the system of protection of human rights;
Taking into account the results of the monitoring of respect by members states of their commitments on the subject of “functioning of the judicial system” and of the decision taken by the Ministers’ Deputies at their 693rd meeting on 12 January 2000 on the possibility and scope of judicial control of administrative decisions;
In the light of the conclusions of the 1st Conference of Presidents of supreme administrative courts in Europe, which had as its theme “The possibility and scope of the judicial control of administrative decisions in member states” (Strasbourg on 7-8 October 2002);
Taking into account the legal instruments of the Council of Europe in the field of administrative law and in particular Resolution (77) 31 on the protection of the individual in relation to the acts of administrative authorities;
Bearing in mind Recommendation No. R (94) 12 on the independence, efficiency and role of judges;
Recalling Recommendation N°. R (2003)… on execution of administrative and judicial decisions in the field of administrative law;
Seeking Wishing to strengthen the rule of law and human rights, fundamental values of the legal systems of Council of Europe member states;
Seeking Wishing to ensure effective access to justice judicial control of administrative acts ;
Wishing to indicate to member states the principles applied to judicial control of administrative acts;
Convinced that other methods of control of administrative acts, which may include internal appeal to the administrative authorities and control by the ombudsman as well as appeal to alternatives to litigation set out in Recommendation No. R (2001) 9 on alternatives to litigation between administrative authorities and private parties, are useful for improving the functioning of jurisdictions and for the effective protection of everyone’s rights, but that these means cannot prevent the appeal to judicial control;
Recommends that the governments of member states apply, in their national legal system and in practice, the principles and recommendations [of best practice] set up below annexed to this recommendation.
A. Definitions
For the purposes of this Recommendation,
1. By “administrative acts” are meant:
a. legal acts – both individual and normative – and physical acts of the administration taken in the exercise of public authority which affect the individual or collective rights or interests of physical or legal public or private persons;
b. situations of express refusal to act or an omission to do so.
2. By “judicial control” is meant the legally binding determination by a tribunal judge of the lawfulness of an administrative act.
B. Principles
1. Access to judicial control review
a. Physical and legal persons should be able to obtain judicial control review of administrative acts that affect their rights or interests worthy of protection protected. The law can provide that the protection of collective interests may be ensured through associations or other bodies of protection [legally] formed in accordance with law as well as, under certain conditions, physical or legal persons.
b. The cost of access to judicial control review should not be such as to discourage applications. Legal aid should be available to indigent persons where the interests of justice require it.
c. Applications for judicial review may be subject to reasonable time limits
d. (? a right of appeal to a higher court)
c. The right to a court does not put an obstacle in the way of:
- the estimate of a reasonable time limits sufficient delay to address the court after hearing notification of an administrative act;
- the necessity to exhaust, within a reasonable time, internal ways of appeal to the Administration.
2. The scope of judicial control review
a. All administrative acts should be subject to judicial control review, including acts involving the exercise of discretionary power.
b. Administrative silence, or failure to act, should be subject to judicial control review
c. Administrative sanctions (fines or imprisonment) imposed by a public official for regulatory or other minor offences should be subject to judicial control review
d. The grounds for judicial control review should be violation of the law, including lack of competence, procedural impropriety and abuse of power
3. An independent and impartial tribunal
a. Judicial control review should be conducted by an independent and impartial tribunal established by law.
b. The tribunal may be a specialist administrative tribunal or a part of the ordinary system of courts.
c. The independence and impartiality of the tribunal should be guaranteed in accordance with the terms of Recommendation (94) 12.
4. The right to a fair trial under Article 6.1 European Convention on Human Rights
a. The hearing of the application should be completed by The tribunal should [take its decision] give its judgment within a reasonable time. There is no absolute time limit. What amounts to a reasonable time depends upon the circumstances of each case. Factors to be taken into account are the complexity of the case, the conduct of the applicant and of the administrative and judicial authorities, and what is at stake for the applicant.
b. There should be equality of arms between the parties to the proceedings. Each party should be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. Equality of arms requires that a party be informed of and be able to challenge the reasons for an administrative decision and to be able to present and cross examine any witnesses and to have access to facilities on equal terms.
c. The applicant should have access to the administrative file (discovery of documents).
d. The proceedings should be adversarial in nature. All relevant evidence should in principle be made available to the parties with a view to adversarial argument.
e. The proceedings should be conducted in public, unless the public interest dictates otherwise.
f. Judgment should be pronounced in public.
g. Reasons should be given for the judgment. Tribunals should indicate with sufficient clarity the grounds on which they base their decisions. Although it is not necessary for a tribunal to deal with every point raised in argument, a submission that would, if accepted, be decisive for the outcome of the case requires a specific and express response.
h. [The right to appeal should be assured in the most important cases.] The decision of the tribunal that reviews an administrative act should, in important cases, be subject to appeal to a higher tribunal that complies with the requirements of Article 6 of the European Convention on Human Rights.
5. The effectiveness of judicial control review
a. The tribunal should be competent to grant provisional measures of protection pending the outcome of the proceedings
b. The tribunal should be competent to prohibit the taking of an administrative act decision, to quash a decision that has already been taken or to require that a duty be performed. The tribunal should also have jurisdiction to award compensation in appropriate cases
c. The tribunal should have the power to sanction an administrative authority that fails to comply with its decision within a reasonable time
General remarks by the scientific expert: “Independent and impartial tribunal” and “legal aid” are also covered by A6, but are dealt with under a different heading in the draft recn. ? amend heading of 4 to take account of this, or bring these elements under A6 heading.
