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Strasbourg October 2002
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Warsaw December 2003



Strasbourg, 7 – 8 October 2002

Proceedings of the Conference

Secretariat memorandum prepared by the
Directorate General of Legal Affairs

Table of contents

General introduction
Jean-Paul Costa, Vice-President of the European Court of Human Rights

The organisation of the control of administrative decisions
Gerardo Carballo, Office of the Spanish Ombudsman, Madrid (Spain)

The main features of judicial control of administrative action in the
light of the case-law of the European Court of Human Rights

Paul Lemmens, Director of the Human Right Centre, Catholic University of
Leuven (Belgium)

The efficiency of the judicial control of administrative decisions

Jacek Chlebny Judge of the Supreme Administrative Court, Łódź (Poland)

General report

David HARRIS, Professor, Director of the Human Rights Law Centre at
Nottingham University (United-Kingdom)


Programme of the Conference

List of Participants/Liste des participants

General introduction

Jean-Paul Costa, Vice-President of the European Court of Human Rights

Mr Chairman, ladies and gentlemen,

I shall begin, as custom requires – but also, and most importantly, with pleasure – by thanking the organisers of this First Conference of Presidents of supreme administrative courts in Europe for having invited me to give a general introduction to your proceedings. Presumably they thought that someone who has been involved for literally decades in the activity of a supreme administrative court (the French Conseil d’Etat) then the European Court of Human Rights, was not too ill-qualified to introduce the subject.

Without false modesty, I do not feel altogether at ease. In particular, I can see a number of preliminary questions worth clarifying:

Which control by means of judicial review is the subject? Control as to the legality of acts, a process which is usually confused with the litigation for their reversal, or also as to the liability that the administration may incur as a result of the decisions issued, whether in the event that the decisions are wrongful, or where it is possible, indeed desirable, to assign non-culpable liability? This is unclear. Standing in some doubt, I prefer to broaden the range of the subject; you will of course be free to limit it if you consider it too extensive.

Which courts are concerned? Only supreme administrative courts, whose presiding judges are present or represented here? The pyramid of administrative courts which, viewed as a whole, all contribute to the exercise of this judicial supervision? Or every court which can be called upon to exercise it? After all, many European states have only one class of courts but practice effective review of official decisions, and that is true as regards determination of both legality and responsibility; in the United Kingdom for over half a century, the adage “the King can do no wrong” has fallen into disuse, and the Crown can pay compensation to victims. In this respect too, I prefer to have a broad conception of the Conference theme, even though for technical reasons and for the sake of consistency, your proceedings will probably concentrate on the control exercised by the administrative court.

How is this control possible, and what is its extent? A priori, for countries which are Council of Europe members and have ratified the European Convention on Human Rights, it is not only possible but mandatory, and ought to be absolute in its extent. Both the Statute of the Council of Europe and the Preamble to the Convention stress rule of law («prééminence du droit») and genuine democracy. Each of these presupposes, that much seems plain, a judicial review of the administration’s decisions, and without it there would be a vast lawless expanse incompatible with rule of law; democracy too, even if it existed at the political level, would be incomplete and gravely inadequate: it is also in need of judicial supervision if only to mitigate the inequality of arms between the administration and the citizens.

But experience shows that the rule of law, the subjection of public authority to law and to courts, are not things to be taken for granted, and that the constant temptation is to remove administrative decisions from the ambit of the legal norm and court supervision. Experience also shows that far too often judgments are not enforced or are executed belatedly and incompletely, so that the effect of reviewing the administration’s decisions may be more theoretical than actual and illusory rather than genuine.

Moreover, it is not certain that the reluctance shown in carrying out the judgments delivered against the administration is the only factor that limits the scope of judicial control. We know of many others: the fact that the court rules a posteriori, often lacks the means to cope with urgency and frequently exceeds what is deemed a “reasonable time” for making its determination, and that the compensation which it awards is sometimes unsatisfactory…

Thus there are many problems, which moreover bears out the interest of this conference.

But I would be altogether discouraging as an introductory speaker if I confined myself to raising queries and setting out problems. I shall therefore try now to be more positive by indicating some lines of enquiry or, if you will, ribs which, if need be, may bolster the structure of the discussions which await you during the next two days.

My first suggestion is that administrative decisions in fact must undergo judicial review. That is perhaps the nucleus of the rule of law.

Regarding the legality of the decisions in question, I consider that the necessity of this control stems both from their nature and from their effects. By nature, they are a privileged means of action for the administration, the secular arm of State authority, and the members of the community are expected to implement and apply them. The democratic return for this administrative privilege is that those affected by the decision must be able to have a court ascertain whether it is lawful in substance and form.

By their effects, such decisions can infringe the rights and freedoms secured by national statutes and international instruments. Accordingly, Article 13 of the European Convention on Human Rights stipulates that “everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority, notwithstanding that the violation has been committed by persons acting in an official capacity” (my underlining).

This “right to a remedy” is seen proclaimed in several constitutional texts, for example in the German Basic Law. In France, it was upheld by the Conseil d’Etat as a general principle of law from 1950, then by the Constitutional Council which, in a decision of 1996, inferred this rule from Article 16 of the 1789 Declaration of the Rights of Man and the Citizen (which requires that rights be “guaranteed”).

The European Convention on Human Rights is more restrictive in Article 6 para. 1 (which sets forth the right to a tribunal) than in Article 13 since, car, as will be explained by Professor Paul LEMMENS in his report, Article 6 does not have unlimited scope. That accounts for the fact that in this area the case-law of the European Court of Human Rights is slightly less protective than that of the Court of Justice of the European Communities (on that score, a comparison can be made between the Luxembourg Court’s Marguerite Johnston judgment of 1986 and the Strasbourg Court’s Athanassoglou judgment of 2000); it is nonetheless true that Article 13, as I have said, is more extensive in scope than Article 6.

I might add that the various systems, whether national or European, accept that certain decisions of the administration can be exempt from all control by the courts: internal measures, immunities from jurisdiction, acts of government. But the range of decisions that evade control is tending to narrow as time passes.

It must therefore be possible to have decisions of the administration reviewed, and also rescinded – or set aside on a ground of objection – where they are contrary to law. Obviously I do not go into the “technical” details (review actuated by actions brought and objections lodged, review of regulatory acts and/or individual decisions, effect ex tunc or ex nunc of annulments as a result of court proceedings, etc.).

It seems to me, however, that the same reasons militate in favour of judicial control to establish administrative liability. This is usually incurred on the basis of fault, particularly where there is an unlawful decision; occasionally but with increasing frequency, it is incurred on the basis of risk (or breach of equality in respect of public burdens), in the name of overriding principles of equity. The European Convention on Human Rights does not directly lay down the principle of the administration’s liability, but it should be noted that according to Article 41, “If the Court finds that there has been a violation of the Convention…, and if the internal law of the High Contracting Party allows only partial reparation to be made, the Court shall, if necessary, afford the injured party just satisfaction”, that is compensation which the respondent State must pay to the victim. This stipulation, with the added effect of the principle of subsidiarity, makes it clear to us that the State ought to have paid such compensation and, because it did not, the Court orders it to do so. In other words, at least where an administrative decision infringes the Convention, the administration is held responsible for it. It should nevertheless be added that the infringement may have arisen from an omission or proceeding, and not necessarily a decision in the strict sense.

My second suggestion is that, in the light of the European Convention on Human Rights, judicial review of administrative decisions must be in accordance with the rules of fair trial: right of access to a tribunal, respect for the rights of the defence, equality of arms, independence and impartiality of the judges, proceedings held in public, a reasonable time for delivering a judgment, and also its enforcement – I shall come back to this.

The situation in this respect may seem paradoxical. These rules are indeed contained in Article 6 para. 1 de la Convention, which applies strictly to “civil rights and obligations” and “any criminal charge”. Since many administrative decisions do not fit into any of these categories, the principles and rules of national law form the basis on which States apply the requirements of fair trial to this review; furthermore, even when the acts of the administration come within the scope ratione materiae of Article 6, the domestic courts often prefer to rely on national law rather than on the Convention, especially when these sources of domestic law pre-date the entry into force of the Convention – perhaps in order to recall, and I mean no mischief in saying so, that in those countries fair trial is an old-established principle.

All that is true; but several remarks can be made on this subject. Firstly, very early on the Strasbourg case-law gave an independent and progressively broader interpretation of the concepts of civil rights and obligations and of a criminal charge, so that they subsumed a constantly increasing number of disputes concerning administrative decisions. I may mention paragraph 94 of the Ringeisen v. Austria judgment of 1971: for Article 6 para. 1 to be applicable “it is not necessary that both parties to the proceedings should be private persons. The wording of Article 6 para. 1 is far wider… [covering] all proceedings the result of which is decisive for private rights and obligations. The character of the legislation which governs how the matter is to be determined (civil, commercial, administrative law, etc.) and the body which is invested with jurisdiction in the matter (ordinary court, administrative body, etc.) are therefore of little consequence”. Subsequently, the States themselves were influenced by this precedent, and the practice of their supreme courts incorporated more and more, though admittedly with less enthusiasm in some cases than in others, an interpretation of these concepts approximating the one given by the European Court of Human Rights. Finally, the Convention interpreted in this way is useful, indeed indispensable, for the “new democracies” which have ratified it over the last ten or twelve years; in these countries, judicial review of administrative decisions was formerly inoperative or defective in the light of the rules of fair trial. The Convention thus has not only a protective but also a structuring and harmonising function.

My third suggestion is that, as intimated by the conference programme moreover, at the start of this century there is no longer really any question about the existence of judicial review in Europe, but its effectiveness and efficiency are more problematic and warrant ceaselessly renewed efforts for their enhancement.

The two European courts appreciate this. There is no need to remind you of the many European Court of Human Rights judgments which have found a violation of Article 6 para. 1 with regard to exceeding reasonable time for delivery of judgment. The Court, which had long asserted that it was the duty of States to organiser their judicial systems in such a way as to avoid slowness of justice, has furthermore accentuated its severity. The Bottazzi judgment of 1999 revealed, considering the prevalence and regularity of undue length of proceedings in Italy, the existence in this country of a practice which it condemned. The Kudla judgment of 2000 found against Poland, not only for the violation of Article 6 para. 1, but also for the violation of Article 13, owing to this country’s lack of domestic remedies allowing the consequences of undue length of proceedings to be rectified or redressed. A glimmer of hope has been lit for some years now, as several countries have in fact instituted such remedies either by law or through court practice (I am thinking especially of Austria, Italy itself, and France too, as regards both its ordinary courts and its administrative courts).

Concerning what might be called the culture of urgency, and the measures which courts must be empowered to take in order to cope with urgency, the signal has been given mainly from Luxembourg. The Factortame (n° 1) judgment of 1990 by the Court of Justice of the European Communities censured the United Kingdom for not having a system of provisional measures allowing protection of rights in the framework of Community law. It is interesting to note that, by the initiative of the House of Lords, this country later introduced such provisional measures, not only in respect of litigation within the framework of Community law but far more extensively.

I shall finally stress a third aspect, which is that in the Strasbourg Court’s view, prompt and complete execution of the judgment is an integral part of the requirements for a fair trial. This principle was first propounded, in forceful terms, by the Hornsby v. Greece judgment of 1997, in which the administration’s failure to execute decisions of the Greek Supreme Administrative Court was at issue.

Fortunately indeed, many national systems have adopted laws and structural arrangements for action in all these areas. To speak only of France, for some twenty years, among other reforms, it has been improving the procedures for executing administrative judgments, reforming the organisation of its administrative courts, introducing procedures for coercive penalties and administrative enforcement, and has very markedly improved the urgent application procedure.

Yet I am aware that this is not an isolated case and that other European States have also carried out reforms of their administrative justice, giving it increased legal, but also financial and human, resources.

There, Mr Chairman, ladies and gentlemen, are a few avenues which I have ventured to open for you. If I may end on an optimistic note, at all events reasonably optimistic, I find that over the time I have been interested in control of administrative decisions by means of judicial review, the situation in Europe has greatly changed, if anything for the better. The control applied is more extensive and effective. The chief problem of administrative courts has been, and remains, the increase in the number of applications, and is far from easy to solve. We also experience it, with some magnitude, at the European Court of Human Rights and, in conjunction with the Council of Europe and its member countries, we are considering a further reform to the Convention system. But this problem, among other features, reveals an ever-stronger determination among the citizens to bring the decisions of the administration under the scrutiny of independent, impartial, competent and effective judges. As stated in paragraph 41 of the Hornsby v. Greece judgment which I have already mentioned, “the administrative authorities form one element of a State subject to the rule of law and their interests coincide with the need for the proper administration of justice”. It therefore rests with the State authorities to appreciate that a justice system which effectively supervises their decisions, far from impeding them, helps them in the long run to be more credible, acceptable to the public, and finally more effective. I trust that your conference may contribute to this awareness and am convinced that it will do so.

Thank you for your attention.

The organisation of the control of administrative decisions

Gerardo Carballo, Office of the Spanish Ombudsman, Madrid (Spain)

Mr Chair, ladies and gentlemen, I would like to thank the Council of Europe for inviting me to act as rapporteur at this conference.

Today we are discussing arrangements for review of administrative decisions, and we first have to bring in the concepts of existence and scope of review.

This involves taking into account the differing legal situations in individual Council of Europe member countries, and in particular the different approaches which countries take to administrative law - treating it, for example, as part of civil law or common law, or simply as a system of basic law providing a range of administrative guarantees.

Over and above these differences, it is essential to establish preliminary common ground so as to be sure we mean the same things in discussing administration from the legal standpoint.

The starting point has to be administrative authorities’ powers over the private individual and the objectivity and effectiveness of administrative measures in terms of public interest.

Basically we are dealing here with administrative authorities mainly concerned with public services and a few other miscellaneous activities, and whose exercise of power may alter the individual’s legal situation.

On that basis, subject to possible qualifications, it is clear firstly that the rights and obligations of administrative authorities and those of citizens are closely connected and interdependent and secondly that action by the administrative authorities has to comply with the constitution and the law and has to be conducted through procedure which allows the private individual an active part in administrative decision-making.

It is when an administrative authority acts contrary to the law that conflict arises. To deal with it the state has to guarantee access for the citizen to specialist courts which will deal with the case and, if appropriate, compel the administrative authorities to alter their decisions or repair any injury caused.

1. Article 6 ECHR

To what extent do the guarantees in this article apply to review of administrative decisions?

The right to a fair trial and to a decision by an independent, impartial tribunal within a reasonable time is a right that must be secured to all citizens of Council of Europe member countries. Today that is not a right that can be denied or weakened for any reason, least of all on account of public adminstration and its many activities.

From the standpoint of human-rights protection it is totally impermissible for there to be areas of immunity for public authorities wielding executive or quasi-judicial powers vis-à-vis the public.

It would create grey areas as regards protection of basic rights, would be undemocratic and would interfere with the rule of law. Seen from another angle, absolute access to the courts is a supra-national right incorporated into the domestic law of each of the signatories of the European Convention on Human Rights. Article 6(1) of the convention, when construed broadly1, allows that right to be extended into the administrative sphere.2

This is the position taken by the European Court of Human Rights. The Court’s established case-law goes into some detail on interpreting “disputes about civil rights and obligations” to mean all proceedings affecting civil rights and obligations in one way or another.

For Article 6(1) to apply, the two parties do not need to be private individuals; the nature of the measures by the administrative authority does not have any major bearing on the dispute; nor does the type of law applying to the dispute; and it is immaterial whether the decision was taken by an ordinary court or by an administrative body.3

The really important thing is the damage done to people’s civil rights when a country restricts their access to justice and a fair trial.

We can therefore say that the extent of the guarantees afforded by Article 6(1) as regards review of administrative decisions has greatly progressed, as has European Court case-law.

The progress consists in the fact that arbitrary decisions, misuse of authority, procedural defects and even interpretation of the law can all be referred to the courts - and whatever the disagreement, it has to be treated as a dispute for purposes of Article 6.4

The nature of the right at issue in the individual case5 is therefore the key question in transferring this type of review to the administrative system. However, analysis of the disputes which the Court has determined would suggest that supervision is necessary where action by administrative authorities adversely affects civil rights in areas as diverse as compulsory purchase, loss of public-service employment, administrative authorities’ property responsibilities and disciplinary penalties.

2. The different types of review of administrative decisions:

Internal review by the administrative authority, the ombudsman, judicial review, alternative methods of dispute settlement

The central issue is therefore the necessity of action by the judiciary as the ultimate guarantor of citizens’ rights in the administrative field, but there are further questions regarding review of administrative decisions.

As already stated, the administrative authorities have a range of powers vis-à-vis the public as regards public works, imposition of penalties, policing, tax collection, the civil service, etc which in theory are lawful - unless the contrary is demonstrated - and enforceable. Execution of decisions taken under those powers cannot be stopped unless resultant harm to citizens’ rights would be difficult to remedy. For people’s fundamental rights can be affected by the legal outcomes of the procedures involved and restoring them will require a decision by an independent judicial body.

To prevent administrative authorities’ holding total power, legal systems provide for prior review of the lawfulness of administrative decisions, and this involves a formal procedure which has to be complied with. This ensures that interested members of the public have access to information, can keep track of the progress of the procedure and are able to submit any documents or evidence they consider necessary.

However, these safeguards do not diminish the extent of conflict between the public and the administrative authorities because the basic problem is not just the final decision but that of building informal action, proportionality and flexibility into the decision-making process so that the final outcome is fairer and more appropriate.6

That is what makes it necessary to adapt the rules governing citizens’ legal dealings so as to keep up with social and technological change, and this includes adjusting the arrangements for dispute settlement.

Greater citizen participation here entails dialogue, provision of information, collaboration and consensus7 all of which are tools for restricting administrative authorities’ powers to make sure that they are exercised solely in citizens’ interests.8

So far, unfortunately, administrative authorities have failed to take these things on board. Usual procedure for internal appeal is not at all satisfactory, even if it resembles judicial procedure, on account of frequent non-response by the relevant body or standard replies (on pre-printed forms) that are irrelevant to the specific case.

In addition to all these obstacles and the requirement, for access to judicial review, that there first have been an internal appeal, citizens’ right, as established in Article 6, to access to a court sometimes seems to raise a number of difficulties.

As matters stand, it might appear that citizens have a range of means - whether internal or judicial - of protecting their rights vis-à-vis administrative authority, but the reality of the matter is very different.

To the malfunctions we have described, must be added the difficulties our democracies have in developing a justice model that combines quality, effectiveness, inexpensiveness and speed.

Where action by administrative authorities is concerned, it is not enough to have a range of “theoretical” general measures. What is of paramount importance is to have provision for effective review that safeguards basic rights, to build it into administrative structure, and to adapt it to the particular situation.

This requires reorganisation of resources and resetting of objectives, and also an overhaul of arrangements for settlement of disputes between administrative authorities and the public so as to combine traditional systems with the new review methods which have emerged in recent years.

Along those lines, in a joint initiative of all the Council of Europe member countries, the Committee of Ministers adopted Recommendation R(Rec 2001)9 on alternatives to litigation between administrative authorities and private parties.9 The recommendation covers internal review, conciliation, mediation, negotiated settlements and arbitration as alternative ways both of preventing disputes and resolving them.

The main feature of these alternatives is that they can be applied to a wide range of situations arising from administrative activity - whether individual administrative acts, contracts, civil liability or claims relating to sums of money. The recommendation also emphasises the importance of providing the necessary information about these alternative review methods, guaranteeing the independence and impartiality of conciliators, mediators and arbitrators, and guaranteeing procedural fairness for both sides so that rights are protected and equality is observed.

Lastly the recommendation underlines the importance of transparency and of making sure that agreements are properly executed.

Legal opinion is that these new approaches and alternatives will produce satisfactory results where, in present circumstances, countries have not been able to set up competent and effective courts for dealing with administrative disputes.

In contrast, in countries with a lengthy administrative tradition and specialist courts, the conventional pattern of relations between civil society and government is breaking down: alternative methods of dispute settlement are starting to redress the power “imbalance” in that the one-sided arrangement (with the authorities holding all the power) is being replaced by multilateral schemes based on autonomy and featuring negotiation through an impartial third party.

Consensual administrative decision-making already existed under the legislation on administrative procedure in Germany, Italy and Spain. In Spain, however, it is ten years since the system was set up and, with one or two exceptions, there have not been any legislative or regulatory developments since then.

The problem common to these systems stems directly from the prior question of how resources should be organised and what the objectives should be: the institutional outline has been laid down but there has not been sufficient implementing regulation, and this lack of a legal framework is holding back administrative-law activity as well as creating confusion between the old system and the future system.

Despite all these limitations, it is clear that mediation, conciliation and arbitration can be effective. They can be used in administration as the final step in procedure, or to replace the traditional internal review, or within judicial procedure.

2.1 The ombudsman

Another type of review of the lawfulness of administrative action is the ombudsman.
From its origins in Scandinavia, particularly Sweden, to its introduction into nearly all democratic countries, it is possible to chart the institution’s characteristics.

The institution is an independent, impartial one of parliamentary origin whose function is to protect citizens’ rights against unlawful action by the administrative authorities.

The procedures used for that purpose are informal and readily available to the public. The non-binding solutions which the ombudsman puts forward add up to a body of case-law which has significant results and effects in the legal, social and political fields nationally. It also influences legislation and the courts, finding its way into laws, regulations and judgments.

It is worth making the point that the ombudsman is not just an early-warning system on action by administrative authorities but also co-operates with and assists the public authorities in ensuring that action is in the general interest and that basic rights are protected.

Basically the ombudsman has a mediation function in which administrative decisions are reviewed by means of less rigid interpretation of the law and by applying criteria of fairness so as to rectify or attenuate the effects of the law in the individual case.10

The ombudsman’s mediation work also deals with cases of “poor administration”, which must not be confused with illegality or negligence, and which is a subjective concept which has to do with the private individual’s dissatisfaction with “over-rigid application of the rules, failure to apply a rule, inconsistent use of the rules by different departments, delays and prevarication”.

Even where action by administrative authorities appears legal, the ombudsman’s job is to find solutions which are more appropriate to the individual’s social circumstances so that administration is moved closer to the people - whether in individual cases or generally - and administrative authorities share their decision-making responsibilities with the community, through dialogue.

2.2 Judicial review of administration

How is effective justice to be achieved in disputes arising from discretionary action by administrative authorities?

Ombudsmen’s review of administrative decisions, which is characterised by its freedom and flexibility, differs markedly from the more rigid judicial approach. The courts have less latitude than the ombudsman for two basic reasons.

Firstly, the procedure and subject-matter of the dispute are invariable from start to finish, with the result that no alteration can be made to the substantive scope of the case even if the dispute between the authorities and the individual has evolved or if the dispute has eased.

Secondly, the administrative courts have no discretionary powers to use, in an administrative authority’s stead, whatever discretion or margin for manoeuvre was available to the administrative authority. This limitation is not very helpful when it comes to solving essential problems of concern to the citizen within judicial proceedings, and this can make review of administrative decisions less than satisfactory.

That said, it is unthinkable to do without specialist administrative courts given the importance of their function of supervising the administrative authorities and their function of making law (in the form of case-law).

2.3 Alternatives to litigation

Scope for adapting judicial procedure and problems in incorporating alternatives into that procedure

Even when judicial proceedings are under way, alternative methods of dispute settlement must not be ruled out. Such methods are not new in the judicial sphere but friendly settlement as practised at the European Court of Human Rights, under Articles 38 and 39 ECHR, provides a model for the alternative approach.

The new tendency would suggest incorporating these alternative methods into court proceedings - but alongside them, as a way of concluding them by replacing a decision of the court by another decision which the court ratifies and deriving from agreement brought about by a conciliator.

The content of these alternative methods should stay the same even if they are built into judicial procedure: the mediator or arbitrator is independent of the judiciary and accordingly adopts the approach appropriate to the particular system.

Nonetheless the conciliator will usually be the actual judge, who has a conciliation function in helping the parties reach an agreement of whatever kind.

The question, then, is one of using these alternative methods as part of judicial procedure: the content of agreements concluded by means of arbitration, mediation or conciliation needs to be supervised and approved by a judicial authority. In this context the court does not pass judgment on the substance of an agreement but checks that the agreement is in accordance with law and that administrative action is not contrary to the principles of effectiveness, public interest and objectivity, all of which are necessary to the rule of law.

The effect of such mechanisms is to afford greater protection to the private individual: the resultant agreement is enforceable in precisely the same way as a court decision. Which brings us to the question of the effectiveness of such mechanisms.

Firstly, the lack of a conceptual definition causes the type of uncertainty we have already described. In Spain we have virtually no real examples, even though Spanish legislation on contentious proceedings provides for negotiation and conciliation within proceedings. Consequently state counsel, administrative authorities and parties prefer informal agreements to getting involved in a procedure the rules of which are ill-defined.

Secondly, there is a question mark about effectiveness in that building these methods into proceedings involves suspending the proceedings, which inevitably lengthens them and runs counter to the requirement to reduce or eliminate judicial delay.

Thirdly, the citizen may doubt the efficacity of such methods if the dispute is so serious that a non-judicial approach seems inappropriate.

As regards the appropriate point in the proceedings for making use of alternative methods, it all depends on the individual legal system. If alternative methods have already been used instead of internal review by the administrative authority, it would not seem desirable to use them again, at least in the preliminary phase of judicial proceedings.

As a rule, these alternative methods might be incorporated into the stage preceding determination of the case, since once the facts are established the parties can see clearly what the respective positions are and might be open to an agreement so as to avoid any adverse effects of a judicial decision.

At all events, to avoid addition delay to judicial proceedings it is necessary to lay down a maximum length of time for using the methods and achieving a result. There would also be a final hearing at which the court would note the outcome of the alternative procedure and deliver an immediate decision if the procedure had not produced any agreement.

To sum up, alternative arrangements for dispute settlement are of proven usefulness but they need to be governed by clear, workable rules in order to avoid the problems we have described.

The main features of judicial control of administrative action in the light of the case-law of the european court of human rights

Paul Lemmens, Director of the Human Right Centre, Catholic University of Leuven (Belgium)


A. Scope of application of Article 6, § 1

1. Civil cases

a. Existence of a dispute over rights or obligations

1. Article 6, § 1, is applicable only to “disputes” (contestations”), but this word should not be construed too technically, and it should be given a substantive rather than a formal meaning11.

The dispute must be genuine and serious12; it may relate not only to the actual existence of a right, but also to its scope and the manner of its exercise13.

What is essential, is that the dispute is of such a nature that it lends itself to judicial assessment. This is the case when it involves questions such as whether the decision challenged is taken by the competent body, whether the procedure has been regularly followed, whether the statutory conditions (in law and in fact) for taking the decision are satisfied, or whether the decision is reasonable and not arbitrary14.

2. The rights or obligations must be the object -or one of the objects- of the dispute; the result of the proceedings must be directly decisive for the right or obligation15.

At least two kinds of disputes can be distinguished:

- disputes in which the court is asked to determine what the rights and obligations of each of the parties are (e.g. claims for compensation for wrongful acts, …);
- disputes in which the lawfulness of an act or an omission, allegedly interfering with the applicant’s rights, is challenged16.

The latter kind of disputes covers actions for annulment of administrative acts, often adjudicated by administrative courts (e.g. action for annulment of refusal to grant a permit or a license to applicant; action for annulment of permit or license granted to neighbour or competitor). It may also cover disciplinary proceedings, in particular where the sanction may be the suspension or the withdrawal of the authorisation to continue to practice a private profession.

The link between the decision challenged and the right invoked must be sufficiently close; Article 6, § 1, does not apply where that link is too tenuous and remote17. But the mere fact that the administrative act complained of has a normative or general character, and thus may regulate the situation of many more people than the applicant only, is of no consequence in this respect, as long as the applicant’s rights are among those that can be affected18.

3. The dispute must relate to “rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law19.

The term “right” has an autonomous meaning: it does not only refer to “subjective rights”, but also to legitimate interests20. The existence of a discretionary power for an administrative authority is not incompatible with the existence of a “right” of the citizen.

4. Article 6, § 1, is applicable to those stages of the proceedings where the outcome is (still) directly decisive for the rights at issue. This includes proceedings on appeal and cassation proceedings, as well as proceedings before a constitutional court (preliminary ruling or constitutional appeal).

b. Civil nature of the rights or obligations

5. The term “civil” has an autonomous meaning.

In principle, the question whether a right or an obligation is civil or not, should be answered on the basis of an analysis of the characteristics of that right or obligation:

- where that right or obligation comprises predominantly features of private law, it must be qualified as a “civil” right or obligation;
- where that right or obligation comprises predominantly features of public law, it cannot receive that qualification21.

6. The case-law of the Court shows that this criterion leads to a wide range of “civil” rights. Examples include the right to a licence, necessary to carry out a business22, and the right to social security benefits23.

On the other hand, there are, according to the Court, certain cases that are not comprised within the category of disputes over civil rights:

- disputes concerning elections24;
- disputes raised by civil servants whose duties typify the specific activities of the public service, in so far as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities; this “functional” criterion requires an analysis of the duties and responsibilities of the civil servant in question: a dispute is only excluded from the scope of Article 6, § 1, where the civil servant’s post entails direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities25;
- disputes concerning the entry, stay and deportation of aliens26;
- tax disputes27.

2. Criminal cases

7. The concept of a “criminal charge” has an autonomous meaning too.

The European Court uses three criteria to ascertain whether a given charge counts as “criminal”, within the meaning of Article 6, § 1:

- the legal classification of the offence in domestic law: where it belongs to criminal law, Article 6 is applicable; where it belongs to administrative, tax or disciplinary law, the next two criteria have to be examined;
- the nature of the offence: where the relevant provisions are of a general nature (and not directed only at a given group possessing a special status, in the manner of disciplinary law), prescribe conduct of a certain kind and make the resultant obligation subject to a sanction that is both deterrent and punitive, the offence may be qualified as “criminal”, in the sense of Article 6;
- the nature and the degree of severity of the possible penalty: deprivations of liberty and important fines are indicative of the “criminal” character of the offence28.

The second and third criteria are alternative and not cumulative: for Article 6 to apply by virtue of the words “criminal charge”, it suffices that the offence in question should by its nature be “criminal” from the point of view of the Convention, or should have made the person concerned liable to a sanction which, by its nature and degree of severity, belongs in general to the “criminal” sphere. This does not exclude that a cumulative approach may be adopted where the separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a “criminal charge”29.

8. On the basis of the second and the third criterium, the following proceedings have in certain cases been held to fall within the scope of application of Article 6:

- proceedings relating to “administrative sanctions”, i.e. sanctions imposed by administrative authorities30;
- proceedings relating to tax surcharges31;
- disciplinary proceedings32.

B. Right to a court

9. In a society based on the rule of law, the right to a court is of paramount importance. In “civil” cases, it means that everyone may bring a claim relating to his civil rights and obligations before a court33; in “criminal” cases, it means that no sanction can be imposed unless by a court or under the control of a court34.

The right to a court presents various aspects, which are the object of the following discussion.

1. Right of access to a court

a. Principle

10. In principle, there must be, for disputes falling within the scope of Article 6, courts competent to examine the civil claim or the criminal charge. Moreover, the individual must in principle be able to bring his case before the court.

This is particularly important in administrative matters. It means that anyone who considers that an interference with the exercise of one of his civil rights by an administrative authority is unlawful, must have the possibility of submitting that claim to a court meeting the requirements of Article 635. It means, likewise, that anyone who considers that a sanction, imposed on him by an administrative authority, is unlawful, must have the possibility of challenging that sanction before a court. Article 6, § 1, thus guarantees a right to judicial review of administrative action.

11. The right of access to a court must be an effective one.

This requirement may imply, in complex types of cases, a system of legal aid for applicants who are unable to pay a lawyer36.

The effectiveness requirement also implies that the system of judicial review be sufficiently coherent and clear. Where procedural rules are drafted in such a way that they create uncertainty, e.g. as to how to determine which court has jurisdiction or how to calculate the time-limit for bringing an appeal against an administrative act, citizens whose claim has been dismissed for a procedural reason have had no practical, effective right of access to a court37.

Finally, where enforcement measures are already taken while the decision is being challenged, the effectiveness of the right of access seems to imply that the applicant must have the possibility to request a stay to prevent or stop immediate execution and, where such request is rejected, that the judicial review procedure be conducted with the diligence required by the circumstances38.

b. Limitations

12. The right of access is not absolute, but may be subject to limitations. However, such limitations may not restrict or reduce the access left to the individual in such a way, or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6, § 1, if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved39.

Limitations can be:

- of a procedural nature (time limits, capacity requirements, etc.);
- of a substantive nature (immunity for certain persons or institutions).

2. Right to a judicial determination of the dispute

13. The court before which a claim is brought, must have the power to decide the case, i.e. to settle the dispute. In the words of the European Court: the proceedings before the court must be able to provide the “determination by a tribunal of the matters in dispute”40.

A mere advisory power is not enough. Where a court can only give an opinion, Article 6 is violated, even if it appears that the opinion of the court is followed by the competent (administrative) authority in the great majority of cases, including in the case at hand41.

14. The European Convention does not preclude States from setting up administrative boards or commissions, of a non-judicial nature, to hear appeals against administrative decisions, provided that the decision of the administrative appeals organ is itself subject to subsequent control by a judicial body42.

Where the case concerns a judicial appeal against an administrative act, taken either by the competent administrative authority or by an administrative appeals organ, the question sometimes arise whether the court’s scope of jurisdiction satisfies the requirements of Article 6. This is a question that cannot be answered in the abstract: in assessing the sufficiency of the review that has been available to an applicant, the European Court indicates that “it is necessary to have regard to matters such as the subject-matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal”43.

Generally speaking, judicial control must be exercised “by a judicial body that has full jurisdiction and does provide the guarantees of Article 6, § 1”44.

The term “full jurisdiction” is somewhat misleading, especially in cases where an action for annulment is brought before the court. Administrative courts typically are unable to substitute their own decision (on the merits) for that of the administrative authority, and often can only quash the act under review. This is (in principle) not incompatible with Article 6 of the European Convention. That article generally only requires that the appeal allows for a challenge of the “lawfulness” of the decision of the administrative authority45.

In order to comply with this requirement, the court must in the first place be able to consider all the submissions relied upon by the parties46. These submissions may relate to matters of law, as well as to matters of fact. As far as the law is concerned, and where the act appealed against has been taken in the exercise of administrative discretion, the court must have the power to examine whether the administrative authority remained within the limits set by the law; in this respect, the court must be able to examine the act under review “in the light, inter alia, of principles of administrative law”47. As far as the facts are concerned, the court must have jurisdiction to “ascertain” facts48, or at least to “rectify factual errors”49. One possibility is that the court is able to establish the facts itself, in a trial “de novo”. However, Article 6, § 1, does not seem to prohibit a system whereby the court has to rely on facts established by the administrative authority. In the latter hypothesis, it is nevertheless imperative that the procedure before the administrative authority offers some safeguards as to the decision-making process and, moreover, that the court has the power to satisfy itself, first, that the administration relied on evidence capable of supporting a finding of fact, and secondly, that the administration's decision is based on an inference from facts which is not one which no administration, acting properly, would have drawn50.

It is further generally inherent in the notion of judicial review that, if a ground of challenge is upheld, the reviewing court has the power to quash the impugned decision, and that either the decision will then be taken by the review court itself, or the case will be remitted for a fresh decision by the same or a different administrative body51. Both systems are compatible with Article 6 of the European Convention.

3. Right to respect for the final determination by the court

15. One of the aspects of the rule of law, on which the right to a court is based, “is the principle of legal certainty, which requires inter alia that where the courts have finally determined an issue, their ruling should not be called into question”52.

In the former communist countries, this principle has given rise to serious difficulties. The European Court has had to find numerous violations of Article 6 in cases where, after a judgment had become final, the procurator general or the president of the supreme court exercised his power to apply for that judgment to be quashed. The European Court pointed to the fact that, since the exercise of that power was not subject to any time-limit, judicial decisions that were res judicata were nevertheless liable to challenge indefinitely, which amounted to an infringement of the principle of legal certainty53.

16. The right to a court as guaranteed by Article 6 also protects the implementation of final, binding judicial decisions. In States that accept the rule of law, such decisions cannot remain inoperative to the detriment of one party54.

As the European Court has held, the above principle is “of even greater importance in the context of administrative proceedings concerning a dispute whose outcome is decisive for a litigant's civil rights. By lodging an application for judicial review … the litigant seeks not only annulment of the impugned decision but also and above all the removal of its effects. The effective protection of a party to such proceedings and the restoration of legality presuppose an obligation on the administrative authorities' part to comply with a judgment of that court. …Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees under Article 6 enjoyed by a litigant during the judicial phase of the proceedings are rendered devoid of purpose”55.

C. Structural and procedural guarantees

1. A tribunal established by law

17. Article 6 requires that the determination of the dispute is the work of a “tribunal”.

According to the Court's case-law, “a «tribunal» is characterised in the substantive sense of the term by its judicial function, that is to say determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner (…).It must also satisfy a series of further requirements - independence, in particular of the executive; impartiality; duration of its members' terms of office; guarantees afforded by its procedure - several of which appear in the text of Article 6, § 1, itself (…)”56.

The Convention does not impose a particular type of court organisation. The word “tribunal” is thus not necessarily to be understood as signifying a court of law of the classic kind, integrated within the standard judicial machinery of the country57. Administrative courts certainly can qualify as “tribunals”, in the sense of Article 6, § 1, of the Convention. The European Court has even hailed “the very establishment and existence of administrative courts … as one of the most conspicuous achievements of a State based on the rule of law”, having regard to “the jurisdiction of those courts to adjudicate on acts of the administrative authorities”58.

18. The tribunal must moreover be “established by law”. This means that the organisation of the judicial system and jurisdiction have to be regulated by statute, or at least by virtue of a statute59.

It also means that, in each individual case, the tribunal must be composed according to the applicable legal provisions60.

2. Independence and impartiality

19. The court has to be “independent”, which means in the first place that it must be able to decide cases without being subjected to undue influence. “In order to establish whether a body can be considered «independent», regard must be had, inter alia, to the manner of appointment of its members and to their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence”61.

With respect to administrative tribunals, the independence of civil servants, who may have to act as members of the tribunal, is sometimes questionable. There is an appearance of a lack of independence where the tribunal includes a person who is in a subordinate position, in terms of his duties and the organisation of his service, vis-à-vis one of the parties, in this case a public authority62. The same is true where the government can at any time, even during the course of proceedings which are in progress, issue a direction to revoke the power of a civil servant to decide appeals, in which the government’s own policies may be in issue63.

20. The court also has to be impartial, and appear to be so. According to the case-law of the European Court, the impartiality has to be tested on a subjective basis, that is, the personal conviction of a given judge in a given case, and also on an objective basis, that is, determining whether the judge offers guarantees sufficient to exclude any legitimate doubt in this respect64.

In Strasbourg, problems have arisen with judges who, because of a successive exercise of different judicial functions, may have already acquired a certain idea of a case before they are actually called upon to deal with the merits thereof. This is mainly a problem in the criminal area, where the judge who sits as a trial judge may have already intervened at prior stages of the proceedings, e.g. to decide on the detention on remand of the suspect, or to investigate his case. In the administrative sphere, the European Court has held that a panel of five members of the Judicial Committee of the Luxembourg Council of State did not fulfil the requirements of an impartial tribunal, as four of the members had previously taken part in drawing up the Council's opinion on the draft of the regulation under review65.

The question whether or not the same conclusion should generally apply to Councils of State that exercise both advisory functions, by giving advisory opinions on draft legislation, and judicial functions, by determining appeals under administrative law, regardless of the actual involvement (or absence of such involvement) of the members of its judicial section in previous advisory functions, is currently pending before a grand chamber of the European Court66.

3. Public hearing and public judgment

21. The public character of court hearings is aimed at protecting litigants against a system of secret and arbitrary justice. Nowadays, the necessity of having a hearing in each case is seriously disputed, as its usefulness is not always clear and as it may contribute to delaying the proceedings.

The right to a public hearing entails in principle an entitlement to an oral hearing, if none of the exceptions laid down in the second sentence of Article 6, § 1, applies67. However, where the case is examined at different levels by different bodies, and where the matter is of a highly technical nature, there may be good reasons not to hold a public hearing at the later stages of the proceedings68. Where the proceedings take place before a court of first and only instance, “exceptional circumstances” have to be shown in order to justify dispensing with an oral hearing69. Such circumstances are hard to show, where the court examines not only isues of law, but also factual questions70.

The foregoing does not take away the possibility for a person to waive of his own free will, either expressly or tacitly, the entitlement to have his case heard in public. Such waiver is of no effect, however, where it would run counter to an important public interest71.

22. The judgment must moreover be pronounced publicly.

There is not much that has to be said about this requirement. One knows that it does not have to be taken literally. It probably is sufficient that the parties to the proceedings receive a copy of the judgment in their own case, that any person can have access to a judgment for which he has a legitimate interest, and that the judgments that contain more than only style formulas are made available to the general public, e.g. by publishing them in written or in electronic form72.

4. Fair trial

23. Judicial proceedings have to be conducted fairly. This general requirement is made concrete through a number of specific requirements and prohibitions. In substance, they imply that each party must have a reasonable opportunity to present its case to the court, and that the court must examine the arguments invoked by the parties.

24. Having regard to the case-law of the European Court, it seems that in proceedings before administrative courts it is the adversarial character of the proceedings, which most regularly gives rise to problems.

In principle, the right to an adversarial trial “means the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party”73. In administrative cases, this implies, among other things, that a citizen must have access to the administrative file, as it is communicated by the public authority to the court74.

It seems that under certain conditions a litigant also has a right to obtain the production of documents in the possession of the public authority, but not relied on by that authority for its defence, and not included in the file produced by it to the court. Of course, the fact of bringing proceedings against a public authority does not create a right of unlimited acces to government documents. The European Court has subordinated the obligation for the public authority to supply the litigant with certain documents to the requirement that, at the very least, the person concerned give, even if only briefly, specific reasons for his request75. And the obligation exists only with respect to documents in the possession of the public authority, which can assist the applicant in his claim76.

25. The European Court has further held that the right to adversarial proceedings is relevant not only with respect to memorials and evidence produced by the parties, but also with respect to any evidence adduced or observations filed by an independent organ, with a view of influencing the court's decision.

This principle has been applied, first to the opinion given by the advocate general to a supreme court77, and more recently also to the opinion given by the “commissaire du gouvernement” to the French Council of State78. It is interesting to note that, in the latter case, the European Court explicitly refused to treat supreme administrative courts, such as the Council of State, any differently than “ordinary” supreme courts, such as a court of cassation79.

5. Reasonable time

26. Last, but not least, there is the requirement of a trial within a “reasonable time”.

The case-law of the European Court abundantly illustrates that many courts in Europe face serious problems with their caseload, and that attempts by the legislature, the executive and the judiciary to solve these problems, are often far from successful.

Administrative courts are not an exception. In fact, they are perhaps even more vulnerable than other courts, when it comes to the assessment of the reasonableness of the duration of procedures. This is because, although the guarantees of Article 6 of the European Convention are in principle to be respected (only) at the stage of the proceedings before a judicial organ with full jurisdiction, the reasonableness of the duration of proceedings that have taken place before one or more administrative courts will partly depend on the duration of any preliminary procedure before an administrative body, where such procedure existed and where it had to be exhausted before the case could be brought before the court. To say it differently, the time under review may start to run already from the moment that an administrative appeal is lodged with an administrative appeals organ80.


A. Scope of application

27. Article 13 guarantees an effective remedy before a national authority to everyone “whose rights and freedoms as set forth in (the) Convention are violated”.

This provision has been interpreted by the European Court in the sense that the actual breach of another provision of the Convention is not a prerequisite for the application of Article 13. An effective remedy is guaranteed to everyone who claims that his rights and freedoms under the Convention have been violated81.

There are, however, limits to the obligation of the States. In the words of the Court, “Article 13 cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention”82.

To the extent that the claim raised at the domestic level concerns a right which not only is one of the rights or freedoms of the Convention, but which at the same time is a “civil” right, in the sense of Article 6, § 1, the two provisions (Articles 6, § 1, and 13) overlap. In some of these cases, the European Court then considers that it is not necessary to determine whether there has been a breach of Article 13, after having examined the complaint based on Article 6, § 1. For the Court, the requirements of Article 13 are “less strict than, and … here entirely absorbed by those of (Article 6, § 1)”83.

With respect to the issue of judicial review, Article 13 thus seems to play only a limited role. It is nevertheless especially relevant where the claim relates to fundamental rights that have been qualified by the European Court as not being of a civil nature, such as the rights of candidates for elections, certain civil servants, asylum seekers and tax payers.

B. Right to an effective remedy before a national authority

1. National authority

28. The “national authority” need not necessarily be a judicial one. If it is not, its powers and the procedural guarantees which it affords are relevant in determining whether the remedy before it is effective84. An essential feature of the “national authority” is its independence85.

In some cases, no single remedy may in itself entirely satisfy the requirements of Article 13, but it may then be possible to take into account the aggregate of remedies provided for by domestic law86.

2. Effective remedy

29. What is required by Article 13, forms now the object of a paragraph quoted by the European Court in most of its judgments dealing with that provision:

“… Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of this Article is thus to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. … The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention … Nevertheless, the remedy required by Article 13 must be «effective» in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State”87.

30. What can Article 13 offer more to litigants than Article 6? It seems that two guarantees deserve to be mentioned.

There is in the first place sometimes a requirement to offer the possibility of obtaining a suspension of the implemention of the measure complained of. The European Court has insisted on such possibility in cases where the implementation of the measure might result in harm of an irreversible nature, such as in cases of expulsion to a country where the applicant may risk torture or other ill-treatment88 or where the expulsion itself may not be in conformity with the Convention89.

Secondly, the “national authority” must be able not only to deal with the substance of the complaint, but also, when the applicant is successful, to grant a certain form of relief. In appropriate cases, compensation for the pecuniary and non-pecuniary damage flowing from the breach of a Convention right should in principle be available as part of the range of redress90. This is a relatively new development in the case-law of the European Court, and the exact scope of the compensation requirement –what are the “appropriate cases” ?- is not yet clear.

It follows from the existence of these two requirements, relating to the suspension of the implementation of administrative measures and to the compensation for wrongful acts, that, where there is an overlap between the Articles 6, § 1, and 13, the requirements of the latter are not in all cases “absorbed” by those of the former. Unless, of course, these requirements would have to be read into Article 6, § 1, as well91

The efficiency of the judicial control of administrative decisions

Jacek Chlebny, Judge of the Supreme Administrative Court, Łódź (Poland)

It is a generally accepted view that the real question is not whether the judicial control of the administrative acts should be established but rather its quality. What matters is the scope, organization and the way it is performed. For every country it is inescapable to create a system and a transparent structure of the judicial control of administrative acts. However, it is not enough to establish separate administrative courts or place an obligation of the judicial control of administrative acts on the ordinary courts. This is not itself sufficient. The judicial control over the administration must be independent, impartial and performed by competent judges. It must be easily accessible to every citizen without unnecessary barriers such as a high court’s fee. It should be respected by all state authorities even by those which are the highest in the hierarchy. The judicial control should be delivered without delay.

Having said that not the principle of the judicial review of the administrative acts as such but questions related to its efficiency create problems I would like to focus on five questions:

1. judges and their competence,
2. delays in the court proceedings, emergency procedures,
3. provisional protection during the court’s proceedings
4. power of a judge vis-à-vis administrative act and inaction
5. the binding force of the court’ s judgements and its enforcement

I. Judges and their competence

While considering the efficiency of the judicial control it seems appropriate to start with the qualities of judges. It is a cliché that the rule of law requires good judges and the good judges may also reduce the ineffectiveness and lameness of the legal system. In the European Charter on the statute for judges adopted under the auspices of the Council of Europe in 1998 there are three qualities considered relevant to all judges (see General Principles 1.1 of the European Charter). They are:

1. independence
2. impartiality
3. competence

These qualities have no special meaning to judges who control the administration, but there are certain particularities which are especially relevant to administrative court judges. There are facts which may bring additional burden and pressure. For example, the tax authority takes tax decisions which are often under the judicial control exercised by the same judge who as a tax payer files a personal income tax return with the same local tax authority. Administrative courts may have organizational links with the Ministry of Justice and perhaps in some countries there are also administrative decisions taken by this Ministry which are the subject matter of the judge’s control. The administrative court judges control the administrative acts issued by the highest state authorities such as for example minister or prime minister. These dilemmas or difficulties which administrative court judges are confronted with cannot be ignored. To help overcome these deficiencies mentioned - the third quality highlighted before (competence) and incorporated to judges - is also important. There is no impartiality or independence of judges if they do not have the expertise in the subject matter about which they have to decide. In relation to administrative court judges knowledge and experience about administrative law and practice is basic. The administrative cases often also call for specialization and experience which goes beyond law. They also cover different, very specific areas of law. It argues for having separate administrative courts or at least special departments for administrative cases in regular courts in order to allow judges to specialize and acquire sometimes very specific expertise.

There are different solutions in order to satisfy the requirement of competence in administrative law and practice.

In these countries in which appointments to judgeship must be preceded by practice in other legal professions, the candidates should demonstrate previous experience in administrative law and practice. The realisation of this goal lies in the proper selection and recruitment procedure of judges on a competitive basis. It is an open question who should be eligible to run for appointment, whether only practising lawyers or also high ranking civil servants – specialists in particular fields of administration. For example in Poland for appointment to the administrative court may also run one who has only graduated from the law faculty but has 10 years experience as civil servant with independent responsibility in one of two fields: application or making law. It is considered that the long practice in the field of administrative law made one qualified even though a candidate has never been a judge nor a lawyer with private practice.

In the system of career judges in which transferring to judgeships from other professions is neither standard nor expected the proper initial education of judges is essential. In the light of the Council of Europe Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency and the Role of Judges of 13 October 1994 states are under obligation inter alia to provide for appropriate training – such as practical training in the courts and, where possible, with other authorities and bodies, before appointment and during their career. This principle is repeated in the Explanatory Memorandum to the European Charter on the Statute for Judges of 1998 (Point 2.3 of the Explanatory Memorandum). The training should be free of charge to judges.

To sum up this point, both - different criteria from those which are prescribed for regular courts' judges and special training are only precautions which tend to ensure the competence of the administrative court judges. Regarding special difficulties in administrative cases it could be recommended that in countries with career judges the appointment should not only rely on the judge’s exam but a certain level of experience in any legal profession must be required.

II. Delays in the court proceedings. Emergency procedures

Delays in the court proceedings, if happen, are the concern of every country and each society. The most effective and the simplest way to reduce delays is to employ an adequate number of judges to the number of cases coming to the court. However this easy solution - for many obvious reasons - is often difficult to apply. It should also be said that delays in the court are neither characteristic for administrative cases nor for one country only. In many countries judges come in for a great deal of criticism from the general public for being slow. Reading also judgements delivered by the European Court of Human Rights in Strasbourg on “reasonable time” as it is stated in Article 6 of the European Convention on Human Rights leads us to a conclusion that this so called “illness” is widespread (see judgements of the European Court which directly blame administrative courts for delays in rendering justice about administrative acts, for example Konig v. Germany, series A 27, 1978, De Moor v. Belgium, series A.292-A, 1994, Paskhalidis v. Greece, Reports 1997 – II, Garyfallou AEBE v.Greece, RJD 1997-V). According to the case law of the Court in Strasbourg the reasonableness of the duration of proceedings covered by Article 6 of the Convention should be assessed in each case according to its circumstances for example such as the complexity of the case, applicant's conduct and the manner in which the matter is dealt with by the administrative and judicial authorities .The "reasonable time" stipulated by Article 6 of the Convention maybe defined by the duration of the proceedings not only before the administrative court. It may start to run on the day on which the party asks for the internal review within administration if it is a prerequisite to the control exercised by the court. (König v. Germany, series A. 27 ,1978).

There are also two additional general introductory points that bear close relevance to the countries which are sometimes defined as new democracies in Europe. Firstly, in these countries the judiciary often works under constant pressure from frequent changes in law and a lack of judges who are experienced in administrative jurisdiction. Secondly, the influx of administrative cases is on the increase. More matters are being entrusted to be decided by agencies in the form of administrative acts and consequently the are more disputes within the competence of the administrative court. To illustrate the tendency of increased numbers coming to the court I would like to present some statistics related to Poland. In the eighties, during the first 10 years of the court’s activity (the administrative court was established in 1980) the cases were coming at a stable rate of approximately 12 000 cases per year. Since the nineties the number of new cases has rapidly increased – in 1992 it was 24 000 new cases, in 1994 the input was 34 000, in 1998 - 62 000, in 2000 - 65 000 cases and in 2001 the input was 76 000 new cases.

Considering that the corresponding number of judges to the number of cases is not always possible to achieve, there is the old question whether anything can be done about reducing delays in the court. The condition is always the same – any changes must not threaten the quality of judgements and the standard of the procedure. It seems to me that there is always some room for manoeuvre. Some inspiration to improve the situation may be found in the Council of Europe recommendations. For example I would like to draw your attention to the following Recommendations of the Committee of Ministers to member states:

1. Recommendation No R(86) 12 concerning measures to prevent and reduce the excessive workload in the courts of 16 September 1986. This recommendation aims to encourage states to relieve judges from the non- judicial tasks and support friendly settlements of disputes

2. Recommendation No. R (94) 12 on Independence, Efficiency and the Role of Judges of 13 October 1994. It indicates inter alia that proper conditions and appropriate training enable judges to work efficiently. It is also emphasized the importance of adequate support staff and equipment ( Principle III. Point 1).

3. Recommendation No. R (2001) 9 on litigation between administrative authorities and private parties of 5 September 2001 which promotes the use of alternative means for resolving disputes such as internal reviews, conciliation, mediation, negotiated settlement and arbitration. Some alternative means, such as conciliation, mediation and negotiated settlement, may be used during legal proceedings, possibly following a recommendation by the judge (General provisions- part II).

Apart from inspiration deriving from the recommendations of the Council of Europe let me share with you two pieces of know how which are closer to home. Polish experience teaches us that delays in the court’s procedure may also result from reasons brought on by the parties of the procedure including the administrative authority. In Polish law there is a remedy to such situations. Before an administrative court decides about the applicant’s complaint (appeal) the agency must send the case file and its reply to the appeal within 30 days. The court may pass the judgement only based on the grounds and arguments presented in the appeal in case of exceeding by the agency this time limit. The implicit intention of it is to speed up the procedure. Secondly, both parties should have the opportunity to present their arguments before meeting in a courtroom. The complainant is obliged to explain why he objects to the decision and has also the opportunity to respond to the arguments presented by the agency. The administrative agency is bound to present its counter-arguments. In this stage of the procedure it is given to the agency the power to admit the complaint and to take a new decision according to the party’s will.

The problem of delays is closely connected with the emergency situations. There are many examples in which the court’s procedure must be shorter than normal. The law itself may provide for a defined type of case emergency procedures (sometimes known as “fast track”, “simplified” or “accelerated” procedures). They are simplified and allow a judgement to be passed quicker than normal. The court’s practice may also give priority to specific cases while listing (allocation to judges) for hearing and deciding. There are different examples of administrative decisions which refer to emergency situations - for example a decision about a ban on a public demonstration or a decision about drafting into the army (call for military service), a deportation order, or also many decisions which concern people in need - for example decisions about social assistance. It seems to me that also complaints about the inaction of the administration deserve certain priority in the court. The purpose of these procedures is to deliver a judgement not in years but in days or months. The need of these procedures can be weakened if the provisional protection is offered during the court’s procedure. It should be also emphasized that in all simplified procedures the concern should be expressed for the rights of the parties, especially rights to be heard and appear in person before a judge.

III. Provisional protection during the court’s proceedings (the suspensive effect of legal action against the administrative decision)

The immediate execution of the administrative act before judicial control may create an irreversible new situation in which the court’s procedure has no longer use. In these circumstances speedy additional procedures should be possible in order to offer provisional protection. Usually it is a suspension wholly or partly the execution of the administrative act which has been challenged before the court. However while granting the provisional protection the court may also re-establish the legal and factual situation which would exist in the absence of the administrative act or place appropriate obligations on the administrative authorities (see the Council of Europe Handbook, Principles of administrative law concerning the relations between administrative authorities and private persons (Chapter 5, point 74). The Council of Europe Recommendation No (89) 8 of the Committee of Ministers to member states on provisional court protection in administrative matters of 13 September 1989 provides that the complaining party should be entitled to request from the court or another competent body to take measures of provisional protection against an administrative act.

It is an open question whether the national legislation should provide automatic suspensive effect when the appeal is lodged with the court or only on the request of the party. I would say that the provisional protection offered to the complaining party should be given on the request of the party and should never invite this party to take steps in order to prolong the court’s proceedings. For example, suspension of payment tax until the tax decision has been controlled by the court may attract the complaining party to later payment and to proceed in the court as long as it is possible if suspension is without any additional financial consequences (for example payment of interests). Certainly while deciding about the provisional measures both public and individual interests should be taken into account along with the rights of third persons.

IV. The power of a judge vis-à-vis administrative act and inaction

The Council of Europe Handbook reiterates the basic requirements of the judicial review (Chapter 5, point 69). In the Handbook (comment 69.3) the distinction is made between “full appeal” and “control of legality”. Whereas full appeal implies review of both matters of fact and law, the control of legality of the administrative act is confined to checking whether the administrative authorities had the power to take an act of the kind in question (or the right not to act) in the situation which it has assessed. A reviewing court whose jurisdiction is confined to the control of legality does not, in principle, substitute its own evaluation of questions of fact or of policy for that of the administrative authorities.

Another controversial problem is whether the power of the court should be limited to decide on the administrative act only or should a judge also be entitled to change the administrative act and make its own decision. The limitation of the court’s power vis-à-vis an administrative act has its roots in the opinion that the court’s activity should not replace the one carried out by the administration, therefore as a rule the court’s judgements should not substitute administrative decisions. On the other hand granting to the court such power (to change the administrative act and substitute this act by its own judgement) may speed up the whole procedure.

The problem of inaction of the administrative agency is linked to the time prescribed for taking a decision. The Council of Europe Handbook, in the chapter on procedural principles, provides that the administrative authority must take the act within the reasonable time (Chapter 3 point 47). This principle applies no matter whether the procedure was initiated by the administrative authority itself or by a private person. There are also several, quite obvious questions related to the judicial control over the inaction of administration.

1. What is the reasonable time frame in the context of inaction ?
2. What is a result of the inaction of the agency ? The right to go to the court or the inaction is considered as equivalent of the decision (positive or negative) ?.
3. What is the court’s judgement like? Should the court have a power to make a decision instead of the agency or only the power to impose an obligation upon the agency to take a decision ?
4. Should such cases have priority in listing in a court. ? If such cases have no priority in the court it would be awkward for a judge to blame the agency for not taking a decision within a reasonable time while the court itself is in delay and make the party wait for a judgment for a long time.

V. The binding force of the court’ s judgement and its enforcement

At the outset three general points should be made.

Firstly, the European Court of Human Rights has recognized that the execution of court decisions, within a reasonable period of time, has to be regarded as an integral part of the right to a fair trial for the purposes of Article 6 of the European Convention on Human Rights (Hornsby v.Greece, RJD 1997-II). It is also rightly reminded that the execution of judicial decisions regarding administrative authorities was the subject matter of discussions within the Working Party of the Council of Europe Project Group on Administrative Law. In April 2002 as a result of its activity preliminary draft recommendation on execution of administrative and judicial decisions in the field of administrative law was presented. In the draft it is said that the decision taken by the courts in the administrative field must be executed by the administrative authorities to whom they are addressed.

Secondly, the most typical situation and only it will only be considered further is when the subject matter of the judgement is evaluation of the administrative act and the judgement imposes an obligation on the agency to take another, lawful act. It happens when a judge decides about the lawfulness of the administrative decision and sets it aside. There are different problems arising from the execution of the judgement which awards damages or imposes directly any obligations on the party. The enforcement of the judgement which imposes a direct obligation is not essentially different from the execution of the civil court judgment. There is also not an enforcement of the administrative court’s judgement if the decision is upheld by a judge and the appeal dismissed. In such a situation any obligations or rights derive directly not from a court’s decision but from the upheld administrative decision.

Thirdly, a court judgement which sets aside an administrative act reopens (begin again) the legal administrative proceedings in the case. As a result of such a judgment the successful party in the court is facing two problems : (a) the agency should take another decision without delay (b) the agency should take a lawful decision which is consistent with the judgement of the court. Normally the administrative court’s judgments is respected by the government and its agencies. For that reason the question of the binding force and execution of judgements usually does not arise. However, it is not always possible to rely on the integrity of the administrative authority and enforcement measures sometimes must take place.

Generally speaking there are three possible situations after the court’s judgement has been delivered:

a) the administrative authority takes the decision which follows the judgement
b) the administrative authority does not take any decision and there is silence (inaction) of the authority
c) the administrative authority takes a new decision but ignores the court’s judgement.

In the case of the situation number (a) the problem of execution does not arise. The problem of execution arises in the situations b and c. and national law should provide sufficient remedies for the party.

In Polish law in case of inaction the party should make a separate complaint to the court about the inaction. The court is entitled to impose an obligation upon the agency to make a decision within a certain period of time and in the case of further inaction imposes other sanctions including a fine. Damages from the agency can be additionally awarded by the civil court.

In case the agency, while taking a new decision, ignores or violates instructions which were given by the court in the legal reasons of the judgement, the court certainly is always in a position to set aside a new decision on the grounds that its judgement was ignored by the agency. An additional remedy could be to approach the higher level agency in the hierarchy of the administration or approach the general public for example through media.

VI. Final Remarks

Let me conclude by pointing out that in Madrid Conclusions which were adopted in 1996 during the multilateral seminar organized by the Council of Europe on the judicial control of administrative acts we can read that “ there can be no rule of law when the state and its administrative authorities are not themselves subject to the law” . The judicial control over administration is proof that the government, administrative authorities are really subject to the law. The judicial control must be efficient. The term “efficiency” covers not only the speed with which judgements are delivered and problems related to their enforcement but also the quality of the judicial control of the administrative decisions. The quality of the judgements depend on those who deliver them – on the judges.

General report

David HARRIS, Professor, Director of the Human Rights Law Centre at Nottingham University (United-Kingdom)

The topic of this paper is the evolution of judicial review of administrative action in the light of the case-law of the European Court of Human Rights (ECHR). It is intended primarily to consider how the case-law of the ECHR that bears upon the question of judicial review of administrative action has evolved. But first, by way of context, it will be helpful to consider the scope and nature of judicial review as it has developed in European national law quite apart from the European Convention on Human Rights (ECHR).

The idea that the exercise of power by the executive is subject to judicial review is long and well established in the law of member states of the Council of Europe. It derives from the concept of the rule of law, or the principle of legality, and has its philosophical roots in the theories of Locke, Montesquieu and Rousseau. In keeping with these theories, judicial review is antipathetic to the concept of the totalitarian state. Its objective is to prevent the abuse of power by the state. Long before the adoption of the ECHR in 1950, the concept of judicial review of administrative action had taken root and been developed in the national law of European states, with the details being worked out differently in different states in accordance with their particular civil law or common law traditions.

In the national law of Council of Europe member states, judicial review is only one of several methods of controlling the exercise of power by the executive. Others include internal review within the administration, and reliance upon the institution of the ombudsman. Each of these methods plays a valuable role and complements the others. Their precise combination and nature varies from state to state, depending upon the legal traditions of each state. Unlike the other methods, judicial review is required by the guarantee of the right to a fair trial in Article 6, ECHR.

As far as judicial review is concerned, although there are large areas of common practice, there is some diversity in the law of European states, which tend to follow from their particular civil or common law tradition or other national historical characteristics. Thus judicial review may be exercised by special administrative courts or tribunals or by the ordinary courts, or by a combination of the two. Similarly, the remedies available for judicial review may be tailor-made or remedies that are available generally, or both.

But all administrative acts are in principle subject to judicial review, although some states allow only a limited degree of review, or none at all, in the case of certain acts of state, such as acts in the conduct of foreign affairs or the defence of the realm. No exception applies to administrative silence, or the failure to act, which is subject to judicial review. Crucially, the exercise of discretionary power is subject to judicial review, as well as the taking of decisions about the legal rights and obligations of individuals, although the closeness of judicial control must be less in the case in the case of discretionary acts.

Judicial review must be available on points of law. The court must, that is, be able to rule on the legality of the decision in terms of the powers of the administrator and the procedure that is followed. The court should also be competent to quash perverse or irrational decisions and to review their proportionality, although not all European national legal systems have yet fully accepted proportionality as a ground for review, and the scope and nature of other grounds for review of an administrative decision on its facts varies in detail from one jurisdiction to another.

Judicial review must be before an independent and impartial court that allows the applicant a fair hearing, in public, and that takes its decision within a reasonable time. Legal aid should be available to allow an applicant in financial need to bring his or her case. Reasons should be given for a decision.

Judicial review must also be effective. This requires that the court has the power to adopt provisional measures of protection pending the outcome of the review. If the application for review is successful, the court must be competent to prohibit the taking of an administrative decision, or to quash a decision that has already been taken, or to require that a duty be performed. The court must also have jurisdiction to award compensation in appropriate cases. Finally, it is an aspect of the right to a court that decisions of the court are implemented.

All of these elements of judicial review are to be found in the national law of Council of Europe states, or are in the process of evolution in them. Until the second half of the 20th Century, the development of the law governing judicial review in Europe along these lines was entirely a matter for states themselves. But, with the advent of the ECHR, and also for some states the European Union (EU), the position has changed.

For EU member states, the European Court of Justice (ECJ) has developed its own principles of judicial review of administrative action by which to regulate the conduct of EU institutions and administrative action by member states. Concepts of proportionality and legitimate expectations in particular have been developed, as has a requirement that reasons be given for a decision. The ECJ’s jurisprudence has had an increasing influence in shaping the national law of judicial review of EU member states, either in a directive way, through judgements binding upon member states, or as an example which national courts choose to follow.

But more important, and of more general application within Europe, has been the impact of the ECHR. This has been through the guarantee of the right to a fair trial in Article 6 and, to a lesser extent, of the right to an effective remedy where a Convention right has arguably been infringed in Article 13 ECHR.

This is an impact which could not easily have been foreseen. It was not the case that many of those who drew up the text of the ECHR in 1950 had in mind administrative justice when they inserted the right to a fair trial into Article 6 of the ECHR. What they were thinking of mainly was the right to a fair trial of the accused in criminal proceedings. Most of the text of Article 6 is shaped in terms that indicate this. But wording was also included in Article 6(1) requiring that there be a fair trial when an individual’s “civil rights and obligations” are being determined. This was in line with the text of the International Covenant on Civil and Political Rights that was then being prepared within the UN. What the negotiators had in mind as they included these words were civil proceedings in the sense of private law: litigation between private individuals in the ordinary civil courts that all countries have. Article 6 was thus intended to cover criminal cases and cases between private individuals.

And this is how the ECHR understood the position when it decided the first crucial case in this area in 1971, the Ringeisen case92. Article 6 was held to apply in that case because it was about validity of a contract for the sale of land between private persons. This, the Court said, was clearly about “civil” rights, which it expressly stated meant private law rights.

But then the Court went on to say something else that was less predictable. Something about the meaning of “determination” , in the phrase “the determination of civil rights and obligations” in Article 6(1). Something that demonstrates very well how states become hostages to fortune once they establish an international court such as the ECHR over which they have no control.

What the Court said was that civil rights, or private law rights, are being determined not only when the two parties to a dispute are private persons, but also when the state interferes in the relations of private persons by taking a public law decision that is decisive for their private law rights. Which was what had happened on the facts in the Ringeisen case. There an administrative tribunal had taken a decision that a sale of the land could not go ahead as it was not in the public interest, as defined by statute, because the land was agricultural and the purchaser planned to use it speculative building.

Clearly this decision was decisive for the private law rights of the parties to the contract of sale. In this way, a toehold was established for Article 6 in administrative law. (One that on the facts did not lead to a finding of a breach of Article 6, even though the tribunal did not sit in public as Article 6 required, because of an Austrian reservation to the ECHR).

The Court’s approach in the Ringeisen case led to speculation that the reach of Article 6 was very wide indeed. That, for example, it might cover the case of the refusal of a permit for an alien to enter the country to take a job for which he had a contract of employment. But the Court later made it clear that Article 6 was not as wide in its application as this. In a 1981 case, the Le Compte case93, the Court stated that the decision has to be directly decisive for the civil or private law rights of an individual; a tenuous connection or a remote consequence is not sufficient. The entry permit example given above would thus not qualify, since the refusal would only be indirectly decisive for civil rights and obligations.

Even so, the impact of the Ringeisen case on the law of judicial review of administrative action has been considerable94. Particularly as a result of two further developments that have taken place in the Court's jurisprudence. First, the Court has held in a series of cases that civil law rights and obligations include not only rights and obligations in the relations between two private persons - as in the Ringeisen case - but also what might be called the rights in rem of a particular individual. The right to property is one such right. As a result, regulatory or other state action that is directly decisive for property rights is subject to the right to a fair trial in Article 6. So, decisions concerning planning permission or the expropriation of property have to comply with Article 6.

The right to engage in a commercial activity has also been held to be a civil right. So, state action by way of the refusal to issue a licence to run a private school or the withdrawal of a licence to practice medicine have been held to be within Article 6.

The right to property and the right to engage in a commercial activity share a common pecuniary character. In fact, the Court has, with some exceptions, held that state action that is directly decisive for an individual’s interests of a pecuniary character concerns his or her civil rights in the sense of Article 6.

But the pecuniary character of the right is not the only test. In other cases, for example, the Court has held that family rights, such as access to children in public care, are civil rights.

One of the most surprising decisions by the Court has been that social security and social assistance rights are civil rights. In two decisions in 1986 the Court weighed the public law and private law characteristics of particular social security rights in the national legal systems concerned, and concluded on the facts that they were both civil rights95. Since then, the Court has gone further and established that social security rights , and also social assistance rights, are generally are civil rights, without the need to examine their particular characteristics.

The social security/social assistance cases are of particular interest because the rights in issue were regarded in the Dutch and German legal systems concerned, as public, not private, law rights. Despite this, adopting an autonomous concept of “civil rights and obligations”, which has the merit that cases from all countries are treated equally, the Court found that they were civil law rights for the purposes of Article 6. As a result their determination had to be by a tribunal complying with the fair trial standards that had been set out and developed in Article 6(1), and in each case they did not do so.

Despite its dynamic and expansive understanding of the meaning of “civil rights and obligations”, the ECHR has still held that some rights and obligations are essentially a matter of public law and hence not within Article 6. An individual’s obligation to pay tax has been held not to fall within Article 6. Although it concerns the property or pecuniary interests of the individual, the determination of tax liability falls within the “hard core of public authority prerogatives of the state.”96 Similarly, right concerning employment in the public service are not within Article 6 where the work involves the exercise of a public function of the kind traditionally associated with the state, such as work in the armed forces and the police - but not work as a school teacher or the promoter of export sales97. The expulsion of an alien from a state’s territory, although crucial to a person’s freedom of movement and possibly the right to respect for the alien’s family life, is also essentially a public law matter that falls outside Article 698. So, finally, is the right to stand for election to public office99

As will be apparent from the kinds of cases that do fall within Article 6, although the Court continues to refer in its judgments to civil rights and obligations as meaning private law rights and obligations, its jurisprudence has led to a position in which Article 6 regulates many more kinds of disputes between the individual and the state than that meaning would normally suggest, to the point where the line between private and public law rights in the Court’s jurisprudence is not easy to explain in terms of any distinction between public and private law that is found in European national law. The use of such all-embracing concepts as the rights to property or to engage in commercial activities has engineered considerable inroads into the realms of public law and administrative justice.

On balance, this is to be applauded. There is a real need, in terms of compliance with the rule of law and of protecting human rights, to provide an international guarantee that requires national legal systems to provide for judicial review of administrative action.
But the present position is in other ways unsatisfactory. The Court's attempts to explain its decisions in terms of public and private law appears artificial and unconvincing. It is arguable that the Court would do better to reformulate its approach in terms of an abstract definition of civil rights and obligations-which is something that it has declined to do - that starts from a different premise or, alternatively, to add other categories beyond the private law meaning of the phrase. It would be possible to add to the list of very general rights that have been recognised by the Court as civil rights by including other human rights in the ECHR itself. These could include freedom from inhuman treatment, freedom of expression and freedom of conscience and religion. A further pragmatic extension to the Court’s approach would be to consider that insofar as states have courts or administrative tribunals in place to determine cases concerning rights and obligations (of whatever kind) that an individual arguably has under its law, these should comply with Article 6. On whatever basis, there is also a strong argument for saying that judicial review should be required - as indeed is commonly provided in European national legal systems - even in those areas that the Court has conceded are fundamentally matters of public law and hence not subject to Article 6. Rights and obligations concerning taxation, immigration and deportation and the right to stand in a public election all fall this category. While it may not have been intended that the right to a fair trial in Article 6 should have such a wide application, and whilst it would result in the word “civil” in the phrase civil rights and obligations having little or no limiting meaning, an extensive reading along these lines would not be inconsistent with European law generally and meet a real rule of law and human rights need.

The second development in the Court’s jurisprudence - in addition to its expansive interpretation of "civil rights and obligations" - has concerned the fact that many decisions by the state that are determinative of an individual’s civil rights are taken not by an administrative tribunal - as in the Ringseisen case - but by the executive. Planning decisions, licensing decisions, child welfare decisions are obvious example. A question which arose following the Ringeisen case was whether the Court would say that all such decisions should be transferred to a body that was independent of the executive and otherwise complied with Article 6, or that executive decisions by government departments, local authorities, etc, should all be taken after a hearing conducted by them that complied with Article 6. This would have been impracticable and quite out of keeping with European practice. So it is both a relief and sensible that the Court has ruled that neither of these things is called for. Instead what Article 6 requires is the possibility of judicial review of administrative decisions that are directly decisive for civil rights and obligations by a body that complies with Article 6. The absence of any possibility of recourse to the courts to challenge an administrative act is contrary to Article 6(1). This has been a problem for some Council of Europe member states, where the tradition had been for review that has technically been within the executive branch of government100.

But what is meant by "judicial review” in this context? In some cases, the ECHR has insisted that there be a full right of appeal on the law and the facts to a tribunal that functions in accordance with Article 6. It has ruled this, for example, in the case of parental rights of access to children in state custody101, so that where a decision refusing access is taken by a social services department there must be a right of appeal on the facts, or the merits, to a tribunal that complies with Article 6. The situation is different in cases in which the administrative decision being challenged involves what the ECHR has called ”the classic exercise of administrative discretion.”102 In such cases, the ECHR has stated that judicial review of the legality of the decision, but not the decision on the facts itself, by a tribunal that complies with Article 6 is sufficient if the decision on the facts is taken by an administrative body that follows a procedure that largely complies with Article 6.

The key case is Bryan v UK103. There the applicant challenged a planning decision against him that had been taken by a planning inspector who, it was held, did not meet the requirement of independence in Article 6 in an objective justice sense. The applicant was able to challenge the decision on the points of law he wished to raise before the English High Court in an application for judicial review. The ECHR held that the judicial review proceedings in the High Court were sufficient because the Court was able to rule on the the applicant’s points of law. This goes to another important point in the Court’s jurisprudence. Article 6 is complied with if the applicant has an opportunity to have a ruling by a tribunal that complies with Article 6 on all of the arguments that he wishes to make. If this is so, it does not matter that the tribunal could not consider other points that some other applicant might wish to raise.

But what is also important about the Bryan case is that the Court stated that, supposing the applicant had questioned the inspector’s findings of fact, there would still have been no breach of Article 6 because the inspector’s decision had been taken “by a quasi-judicial procedure governed by many of the safeguards required by Article 6”. In particular, the Court held (as was agreed by the parties), the procedure followed by the inspector was in accordance with the Article 6 obligation that there be a “fair hearing” in a procedural sense; the only problem was one of objective independence. The limitation of the power of review in this situation, whereby judicial review did not involve an appeal on the decision on its merits, was, the Court noted, “frequently a feature in the systems of judicial control of administrative decisions found throughout the Council of Europe member states”.

At the same time, it follows from the Court’s judgement that if the initial administrative decision on the facts does not involve a quasi judicial procedure that largely complies with A6-if, for example, it is taken by an official in his office without a hearing of the applicant - then Article 6 does require an appeal on the facts before a tribunal that remedies this deficiency.

It should also be noted that the Court took into account in the Bryan case that, while the High Court could not substitute its own decision on the facts for that of the inspector, it could overturn a decision that was “perverse” or “irrational”. As yet, there has not been a case before the ECHR in which an applicant has claimed that he has not been able to challenge a decision on the facts by raising a point about the proportionality of the decision that is being challenged. It has been established that the effective remedy concerning a violation of Convention rights required by Article 13 must be one in which the individual may challenge the proportionality of the decision allegedly amounting to a violation of a Convention right104. But there has been no case in which this question has been decided under Article 6 in respect of civil rights and obligations (whether they are Convention rights - such as the right of respect for family life under Article 8 - or non-Convention rights in national law, such as, perhaps, the right to engage in a commercial activity). It seems likely, given the existing and developing position in European national law, and the jurisprudence of the ECJ, that the ECHR will require that an individual be allowed to raise the question of proportionality in judicial review proceedings. However, this will be the limit of what Article 6 requires. In accordance with the Bryan case, Article 6 will not require that there be a full right of appeal on the facts of the case before a tribunal that complies in every respect with Article 6.

The ECHR's interpretation of the requirements of Article 6 in the Bryan case resolves a problem that the Court had created for itself by its early ruling in the Ringeisen case. At the same time, inventive though it is, it involves a very forced reading of Article 6. The same text of Article 6 now has two different meanings according to the kind of case involved. It applies fully in ordinary private law cases between private individuals, requiring that the facts and the law be determined finally by a tribunal complying with Article 6. But it also applies to a lesser extent, in a way that the text makes no allowance for, in public law cases. This may not matter in that the end result is to uphold the rule of law in cases of administrative action to a sufficient and appropriate extent. However, the better approach might be to draft a tailor-made text, in the form of a Protocol to the Convention, that more easily fitted the case and needs of administrative justice. It might also, at the same time, result in the scope of the judicial review requirement in Article 6 of the Convention being extended and reconceived beyond the very artificial and unsatisfactory limits that result from the “civil rights and obligations” wording of its text, and the Court’s rather artificial interpretation of those words.

So far, this report has considered the kinds of administrative decisions subject to Article 6 and the extent to which judicial review of such decisions has to comply with the fair trial standards that Article 6 contains . The next question to consider is the content of the fair trial standards in Article 6(1) in civil rights and obligations cases.

Article 6 requires a "fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." The concept of a "fair" hearing has been developed by the ECHR to mean, inter alia, that there be "procedural equality"(equality of arms) between the parties105; that the proceedings are such as to allow the proper participation of the parties106; that reasons are given for a judgement107; and that legal aid is available to an indigent party where this is necessary in the interests of justice. All of these elements of a fair hearing are ones which national courts observe, or can reasonably be expected to observe, when they are exercising the power of judicial review required by Article 6(1). The last of them - the right to legal aid - has so far only been held by the ECHR to exist (in non-judicial review cases) where the circumstances have more compelling than those in the typical, national judicial review case.108 One would hope that the ECHR would, as cases arise, require legal aid for indigent persons in most judicial review cases. In addition to a “fair hearing”, Article 6(1) also requires a public hearing, which is an obligation that administrative tribunals do not always satisfy109. Of great importance in practice is the requirement that judicial review proceedings be completed "within a reasonable time". As in the areas of criminal and civil justice, European national courts exercising a judicial review function have commonly be found to be deficient in this regard.110

Article 6(1) also requires that the tribunal exercising the power of judicial review be independent and impartial. Important in this regard is the Court’s development of the concept of objective justice. Not only must the judge not be biased or a part of the administration in fact ( subjective justice); there must also be no legitimate doubt as to the judge’s impartiality and independence (objective justice). If, for example, the judge has a role within a government department within which the decision is taken as well as being a judge, he or she will not be independent for the purposes of Article 6, even though he or she may not have been involved in the taking of the decision.

An allegation of lack of independence or impartiality is therefore one that an applicant must be able to raise by way of judicial review, as a point of law. Thus, Article 6 was infringed in Kingsley v UK 111when a licensing decision was taken by a body that did not, in its membership, meet the Article 6 requirement of objective justice. Although the English High Court would normally be able to quash an administrative decision by such a body under the rules of natural justice that apply in English administrative law, this was not so in the case concerned because the composition of the tribunal was set by a statute that was binding on the Court, so that the doctrine of necessity applied.

It is important to note that Article 6 had been interpreted as extending to the execution of judgements. Under Article 6, the tribunal that exercises the power of judicial review must have the power to give a legally binding decision, and to award compensation or order appropriate enforcement action against the executive. A state must then implement a determination by way of judicial review proceedings that goes against the state. If this is not done fully within a reasonable period of time, there is a breach of Article 6. As the Court has said, the right to a court would be illusory if a national legal system allowed a judicial decision to remain inoperative to the detriment to a party to the proceedings.112
Finally, in terms of Article 6, it should be noted that, in some national legal systems, administrative sanctions may imposed, involving the imposition of a fine, or imprisonment in default, by a public official for regulatory or other minor offences, such as offences involving conduct in breach of road traffic, planning or public order laws. These administrative decisions are subject to Article 6 of the ECHR on a different basis from that which has been considered so far. In such cases, the imposition of the sanctions is likely to be classified for the purposes of Article 6 as the determination of a "criminal charge". Therefore they must be imposed by a court after a fair trial that meet the “fair trial” requirements in Article 6 that apply to the determination of criminal charges, or, if this does not happen, the administrative sanction must be subject to judicial review.113

The ECHR also requires, in Article 13, that a person who has an arguable claim that any of his or her Convention rights and freedoms have been infringed by an administrative decision have an “effective remedy before a national authority.” For example, an administrative decision concerning a person’s access to documents relating to a decision that he should not be employed in national security grounds must be subject to challenge before a court or other body, such as an ombudsman, with jurisdiction to provide an effective remedy.114


It is well established in European national law that administrative decisions must in principle be subject to judicial review. Although there are some exceptions in the case of acts of state, these exceptions are being reduced in number and the general principle of judicial review is firmly established. The grounds for judicial review must extend to the legality of the decision and the review

These standards have evolved at the national law within Council of Europe member states quite independently of the ECHR. However, Articles 6 and 13 of the ECHR now provide international legal obligations, cast in terms of human rights, to provide for judicial review very much along the lines that states had themselves determined. The significance of the ECHR is mainly that states now have obligations in international law, enforceable through a right of petition, to provide for judicial review; they do not have a discretion in this regard. The ECHR guarantees also provide support for national courts, if needed, as they seek to apply the law of judicial review and enforce their decisions against the state. But Article 6 ECHR is not a perfect instrument in this regard, since it does not extent to all kinds of administrative acts for which judicial review is appropriate. For example, Article 6 does not require judicial review of decisions concerning tax liability, the expulsion of aliens, election for public office and some kinds of public employment. Given the need for a more general international guarantee of judicial review of administrative acts in the interests of the rule of law and human rights, the ECHR is to be encouraged to expand the scope of Article 6 further.


The first Conference of Presidents and judges of Supreme Administrative Courts in Europe was held in Strasbourg on 7-8 October 2002. The theme of the Conference was “The Possibility and Scope of Judicial Review of Administrative Decisions in the Member States”. This Conference was organised by the Council of Europe within the framework of the co-operation programme to strengthen the rule of law, in co-operation with the Project Group on Administrative Law (CJ-DA).

Participants welcomed this initiative, in that it provided a useful forum for exchange of ideas between judges dealing with administrative cases. They expressed the wish that similar conferences be organised in the future, on topics of common interest.

Participants held discussions based upon the reports presented to them and, at the close of proceedings, adopted the following


Judicial review of administrative action is an essential element of the rule of law and human rights which are concepts that are central to the legal orders of Council of Europe member States.

All administrative acts should be subject to judicial review. This review applies to the exercise of discretionary power. No exception applies to administrative silence, or inaction. In some legal systems, administrative sanctions may be imposed, involving among others the imposition of a fine or imprisonment, by a public official for regulatory or other minor offences. In all cases, these sanctions should be subject to judicial review.

Other methods of reviewing administrative acts, which may include internal review within the administration and reliance upon the institution of the ombudsman, are complementary to judicial review. These other methods, as well as the use of alternative means of resolving disputes, can also help to relieve the excessive workload of courts and therefore should be encouraged, in accordance with Recommendation No. R (2001) 9 on alternatives to litigation between administrative authorities and private parties.

The organisation of judicial review and of the other means of reviewing the action of administrative authorities, as well as the combination of these means, varies greatly among member States, depending upon their historical and legal traditions. Judicial review may be exercised by special administrative courts or tribunals or by the ordinary courts, or by a combination of the two. Similarly, the remedies available for judicial review may be tailor-made or remedies that are available generally, or both.

Regardless of these organisational differences, judicial review of administrative acts should follow common standards to be found in the legal systems of member states or the procedural guarantees directly derived from the European Convention on Human Rights, notably Articles 6 and 13.

Judicial review should be widely accessible to natural and legal persons. This requires in particular that fees are not set at a level that discourages applications. If necessary, an appropriate system of legal and financial aid should be provided.

The independence and impartiality of the court exercising judicial review should be guaranteed. Independence can be guaranteed, as foreseen in Recommendation (94) 12 on the independence, efficiency and role of judges, by recruiting a sufficient number of judges, security of tenure, providing adequate training and appropriate support staff and equipment. Appropriate status and remuneration, commensurate with the dignity of the profession and burden of responsibilities, can also reinforce the judges’ authority and prestige, and thereby help ensure that their judgments are implemented, particularly by administrative authorities.

Judicial review should respect and ensure the procedural fair hearing guarantees of Article 6(1), including in general access for the parties to the administrative file. Judicial review should occur within a reasonable time and include a public hearing.

The court should have competence to examine all the factual and legal issues relevant for the consideration of the case subject to review.

Judicial review should be effective. This requires that the court has power to adopt provisional measures of protection pending the outcome of the review. If the application for review is successful, the court 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 court should also have jurisdiction to award compensation in appropriate cases.

It is an important aspect of the right to a court that decisions of the court are implemented. The court should have appropriate powers, such as the power to sanction the administrative authority, to ensure that this occurs.

The participants noted that the European Convention on Human Rights was originally not meant to be applied to administrative litigation. The case-law of the European Court of Human Rights partly remedied this situation and the participants expressed the wish that it follow on these lines.

The participants agreed on the value of pursuing the consideration of the judicial control of administrative acts and supported the implementation of the activity in this field by the Project Group on Administrative Law (CJ-DA) of the Council of Europe.

The participants expressed their thanks to the rapporteurs for their contributions and to the Council of Europe for the excellent organisation of the Conference.

Programme of the Conference

Monday 7 October 2002, morning : General Presentation

10.30 Opening of the Conference, room 9
Mr Guy DE VEL, Director General of Legal Affairs of the Council of Europe
Chair : Mr Guy BRAIBANT Honorary Section President of the French Council of State

11.00 General Introduction
Mr Jean-Paul COSTA, Vice-President of the European Court of Human Rights
Round table with all participants

Monday 7 October 2002, afternoon : The effectiveness requirement, guilding principle of the judicial control of administrative decisions

Chair : Mr Heinz AEMISEGGER, Vice-President of Federal Court, Switzerland

15.00 The organisation of the control of administrative decisions
Speaker : Mr Gerardo CARBALLO MARTINEZ, Adviser, Office of the Spanish Ombudsman, Madrid, Spain
Round table with all participants

16.30 The main features of control in the light of the case-law of the European Court on Human Rights
Speaker : Mr Paul LEMMENS, Professor, Director of the Human Rights Centre, Catholic University of Leuven, Belgium
Round table with all participants

Tuesday 8 October 2002, morning : The judicial control of administrative decisions, a relative efficiency ?

Chair : Mr Fernando Manuel AZEVEDO MOREIRA, Vice-President, Supreme Administrative Court, Portugal

9.30 The extent and limits of the judicial control of administrative decisions
Speaker : Mr Theodoros FORTSAKIS, Professor, Athens University, Greece
Round table with all participants

11.15 The efficiency of the judicial control of administrative decisions
Speaker : Mr Jacek CHLEBNY, President of the Łódź Section, Supreme Administrative Court of Poland
Round table with all participants

Tuesday 8 October 2002, afternoon : Summing up of the work and conclusions

Chair : Mr Alexey KOJEMIAKOV Head of the Department of Public Law, Council of Europe

14.30 The evolution of the judicial control of administrative decisions in the light of the case-law of the European Court of Human Rights
General Rapporteur of the Conference : Mr David HARRIS, Professor, Director of the Human Rights Law Centre at Nottingham University (United Kingdom)
Presentation of the draft conclusions of the Conference

16.15 Adoption of the Conclusions and closure of the Conference

List of Participants/Liste des participants


Mr Artur METANI, Legal Adviser to the President of the Republic of Albania, Officie of the President of the Republic, TIRANA

M. Suren MNOYAN, Chairman of the First Instance Court of the Aragatsotnmarz, ASHTARAK

Dr Michael NEUMAIR, Member of Directorial Staff, Administrative Court (President’s Office) WIEN

Mme Sudaba HASANOVA, Chairman of the Supreme Court, BAKU

Mr Senan SALAHOV, Chief of the “International Relations” Division of the Supreme Court, BAKU

Mr Paul LEMMENS, Conseiller, Conseil d’Etat, BRUXELLES

Mrs Svetla PETKOVA, Deputy-President, Supreme Administrative Court, SOFIA

Ms Kameliya IVANOVA, Legal Consultant, Supreme Administrative Court, SOFIA

Mr Václav NOVOTNÝ, Judge, Chair of Senate, OLOMOUC

Mr Uno LOHMUS, Chief Justice of the National Court, TARIU

Mr Ahti RIHTO, Justice, Supreme Administrative Court, HELSINKI

M. Daniel LABETOULLE, Président de la Section du Contentieux du Conseil d'Etat, PARIS

Mme FABIANI-BRAIBANT Françoise, Avocat au Conseil d’Etat et à la Cour de Cassation, Conseil d’Etat, 75000 PARIS

Mr Badri METREVELI, Deputy Chairman of the Supreme Court, Chairman of the Administrative and others Categories Chambers in the Supreme Court, TBILISI

M. Constantin MENOUDACOS, Vice-Président du Conseil d'Etat, ATHENES

Dr Magdolna KÁRPÁTI, Supreme Court Judge, Supreme Court, International Department, BUDAPEST

Mr Alberto de ROBERTO, President, Consiglio di Stato, ROMA

Mr Giuseppe BARBAGALLO, Councillor of State, Secretary General of the Council, Consiglio di Stato, 00186 ROMA

Mr Valerijans JONIKÄNS, Judge of the Civil Cases, Court Chamber of the Supreme Court, RIGA

Mr Kryževičius GINTARAS, Acting President, Supreme Administrative Court (Lietuvos vyriausiasis administracinis teismas), VILNIUS

Mr Ričardas PILIČIAUSKAS, judge of the Supreme Administrative Court, VILNIUS

Mme Valeria STERBET, Présidente de la Cour Suprême, CHISINAU

Mme Eugenia FISTICAN, Premier Juge Assistant de la Cour Suprême, CHISINAU

Mr Eiler STANG LUND, Justice, Supreme Court, OSLO

Mr Ryszard MIKOSZ, President of Section of Supreme Administrative Court in Katowice, GLIWICE

Mr Fernando Manuel AZEVEDO MOREIRA, Vice-Président, Cour Administrative Suprême, LISBOA

Mme Corina Michaela JÎJÎE, Juge à la Cour Suprême de Justice, BUCHAREST

Mr Alexandr FEDIN, Judge of the Supreme Court, MOSCOW

Mr Vladidmir GUKOV, Chief of the International Department, Supreme Court, MOSCOW

Mr Veniamin YAKOVLEV, President of the Superior Arbitration Court of the Russian Federation, MOSCOW

Dr Stefan HARABIN, President of the Surpreme Court, BRATISLAVA

Dr Sergej KOHUT, Chairman of the Administrative Collegium of the Supreme Court, BRATISLAVA

Mr Janez BREZNIK, President of the Administrative Court, LJUBLJANA

M. Heinz AEMISEGGER, Président de la 1ère Cour de droit public, Vice-Président du Tribunal Fédéral, Tribunal Fédéral, LAUSANNE 

Mr Simeon GELEVSKI, President of the Supreme Court, SKOPJE

M. Turgut CANDAN, Conseiller d’Etat, Danistay Baskanligi, ANKARA

Mme Özlem ERDEM KARAHANOGULLARI, Maître des requêtes, Danistay Baskanligi, ANKARA

Mr Volodymyr STEPHANIUK, First Deputy Chairman of SCU-Justice, Internal-Legal Cooperation of the Supreme Court, KIEV

Ms Oksana GUNKO, Head of the Division (Interpretation), Department of International-Legal Cooperation of the Supreme Court of Ukraine, KIEV

The Right Honourable Lord Justice SCHIEMANN, the Royal Courts of Justice, LONDON

M. Guy BRAIBANT, Président de Section Honoraire au Conseil d’Etat français, Vice-Président de la Commission Supérieure de Codification, Conseil d’Etat, PARIS, France

Mr Gerardo CARBALLO MARTINEZ, Adviser, Office of the Spanish Ombudsman, MADRID, Spain

Mr Jacek CHLEBNY, President of the Łódź Section, Supreme Administrative Court, ŁÓDŹ, Poland

M. Jean-Paul COSTA, Vice-Président de la Cour Européenne des Droits de l’Homme / Vice-President of the European Court of Human Rights

M. Theodoros FORTSAKIS, Professeur de Droit Public, Faculté de droit, ATHENES, Grèce

Mr David HARRIS, Professor of Public International Law, Nottingham University, NOTTINGHAM, United-Kingdom - General Rapporteur

Mr Paul LEMMENS: Director of the Human Rights Centre, Faculty of Law, Catholic University of Leuven, LEUVEN - Belgium



Mrs Biljana TAMBURKOVSKI-BAKOVIC, Judge, District Court of Belgrade, Administrative Branch, BELGRADE


Directorate General of Legal Affairs

Mr Guy DE VEL, Director General of Legal Affairs

Mr Alexey KOJEMIAKOV, Head of the Department of Public Law

Mrs Sophie MEUDAL-LEENDERS, Administrator, Public Law Department

Mrs Frédérique BONIFAIX, Assistant, Public Law Department

Directorate General of Human Rights

Mme Lucia MARZANO, Assistante, Service exécution des arrêts de la Cour


Mme Elisabetta BASSU
Mlle Rebecca EDGINGTON
Mr Andreï LEGKI
Mme Pascale MICHLIN
Mr Alexei MILKO

1 See Paul Cassia and Emmanuelle Saulnier, “Le Conseil d’Etat et la Convention européenne des droits de l’homme”,. L’Actualité Juridique Droit Administratif (AJDA), No.5/1997, p.416.
2 See Francisco Fernández Segado, “El ámbito de aplicación del articulo 6.1 del Convenio de Roma en la Jurisprudencia del Tribunal Europeo de Derechos Humanos”. En XIII Jornadas de Estudio sobre los Derechos fundamentales y Libertades Públicas (II), Volume 1, pp.75-114.
3 European Court of Human Rights, König v. Germany, 28 June 1978 and Benthem v. Germany, 23 October 1985.
4 European Court of Human Rights, Sporrong and Lönnroth v. Sweden, 24 September 1982, and European Court of Human Rights, Van Marle and others v. Netherlands, 26 June 1986.
5 European Court of Human Rights, practice as an avocat, H. v. Belgium, 30 November 1987.
6 Parejo Alfonso describes the situation as “… la estrategia de optimización de todas las conductas que deben contribuir a dicho resultado, más que el dictado de determinados y aislados actos de imperium”. “Crisis y renovación en el Derecho Público”. Cuadernos y Debates, Centro de Estudios Constitucionales, 1991, pp.122-129.
7 In this connection Antonia Martinez Nieto writes: “… muchas decisiones administrativas son más eficaces y efectivas empleando fórmulas de consenso y colaboración y mucha más ineficaces cuando se pretenden imponer a través de actos administrativos unilaterales”. In Eficacia y Legalidad en la gestión de Politicas Públicas, D.239 (Diario 4374 of 16 September 1997. La Ley. Tomo de Jurisprudencia, 5/1997, p.1635).
8 It is worth noting Delvolvé’s observations here (translation): “… Those concerned do not challenge decisions as such - they merely want decision-making arrangements to be better adjusted. Nor, in principle, do the authorities adopt an intransigent decision: they may be open to suggestions on changes”. Pierre Delvolvé, “Les solutions alternatives aux litiges entre les autorités administratives et les personnes privées: Conciliation, Médiation et Arbitrage”, Proceedings of the multilateral conference, Lisbon (Portugal), 31 May - 2 June 1999, Council of Europe Publishing, p.22.
9 Adopted on 5 September 2001
10 See annual report, “Le Médiateur”, 1973, p.258, where administrative legalism is defined as “blindly applying the law without heed to the specific situations which it affects”.
11 E.Ct.H.R., 23 June 1981, Le Compte, Van Leuven and De Meyere v. Belgium, Publ. Court, Series A, vol. 43, p. 20, § 45.
12 E.Ct.H.R., 23 September 1982, Sporrong and Lönnroth v. Sweden, Publ. Court, Series A, vol. 52, p. 30, § 81.
13 E.Ct.H.R., 23 June 1981, Le Compte, Van Leuven and De Meyere v. Belgium, supra, p. 22, § 49.
14 Consult E.Ct.H.R., 26 June 1986, van Marle v. Netherlands, Publ. Court, Series A, vol. 101, pp. 11-12, §§ 33-37.
15 E.Ct.H.R., 23 June 1981, Le Compte, Van Leuven and De Meyere v. Belgium, supra, p. 21, § 47.

16 E.Ct.H.R., 23 September 1982, Sporrong and Lönnroth v. Sweden, supra, p. 29, § 80.

17 E.Ct.H.R., 26 August 1997, Balmer-Schafroth v. Switzerland, Rep., 1997-IV, p. 1359, § 40.

18 E.Ct.H.R., 28 June 1990, M. Jacobsson v. Sweden, Publ. Court, Series A, vol. 180-A, pp. 13-14, § 33; E.Ct.H.R., 24 September 2002, Posti and Rahko v. Finland, no. 27824/95, § 53, ECHR, 2002-VII.

19 E.Ct.H.R., 21 February 1986, James v. United Kingdom, Publ. Court, Series A, vol. 98, p. 46, § 81; E.Ct.H.R., 8 July 1987, W. v. United Kingdom, Publ. Court, Series A, vol. 121-A, pp. 32-33, § 73.

20 In the Mennitto case, however, a grand chamber of the European Court left this question explicitly open (E.Ct.H.R., 5 October 2000, Mennitto v. Italy [GC], no. 33804/96, § 27, ECHR, 2000-X).
21 E.Ct.H.R., 29 May 1986, Feldbrugge v. Netherlands, Publ. Court, Series A, vol. 99, pp. 12-16, §§ 26-40, and Deumeland v. Germany, Publ. Court, Series A, vol. 100, pp. 22-25, §§ 60-74.
22 E.Ct.H.R., 23 October 1985, Benthem v. Netherlands, Publ. Court, Series A, vol. 97, p. 16, §§ 34-36.
23 E.Ct.H.R., 29 May 1986, Feldbrugge v. Netherlands, and Deumeland v. Germany, supra.
24 E.Ct.H.R., 21 October 1997, Pierre-Bloch v. France, Rep., 1997-VI, p. 2233, §§ 49-52.
25 E.Ct.H.R., 8 December 1999, Pellegrin v. France [GC], no. 28541/95, §§ 64-71, ECHR, 1999-VIII, in particular at § 66 (inapplicability of Article 6, § 1, to dispute raised by an employee of the French Ministry of Cooperation and Development, who worked as a member of the civilian cooperation staff in post in foreign States); E.Ct.H.R., 27 June 2000, Frydlender v. France [GC], §§ 27-41, ECHR, 2000-VII (applicability of Article 6, § 1, to dispute raised by an employee of a French economic development office abroad, who had a responsibility to promote French goods).
26 E.Ct.H.R., 5 October 2000, Maaouia v. France [GC], no. 39652/98, §§ 33-41, ECHR, 2000-X.
27 E.Ct.H.R., 12 July 2001, Ferrazzini v. Italy [GC], no. 44759/98, §§ 20-31, ECHR, 2001-VII.
28 See, among others, E.Ct.H.R., 8 June 1976, Engel v. Netherlands, Publ. Court, Series A, vol. 22, p. 35, § 82; E.Ct.H.R., 21 February 1984, Öztürk v. Germany, Publ. Court, Series A, vol. 73, p. 18, § 50; E.Ct.H.R., 2 September 1998, Lauko v. Slovakia, Rep., 1998-VI, p. 2504, § 56; E.Ct.H.R., 23 July 2002, Janosevic v. Sweden, no. 34619/97, § 65, ECHR, 2002-VII.
29 E.Ct.H.R., 2 September 1998, Lauko v. Slovakia, supra, pp. 2504-2505, § 57. For an example of a cumulative approach, see E.Ct.H.R., 24 February 1994, Bendenoun v. France, Publ. Court, Series A, vol. 284, p. 20, § 47.
30 E.Ct.H.R., 21 February 1984, Öztürk v. Germany, supra; E.Ct.H.R., 2 September 1998, Lauko v. Slovakia, supra.
31 E.Ct.H.R., 24 February 1994, Bendenoun v. France, supra; E.Ct.H.R., 23 July 2002, Janosevic v. Sweden, supra.
32 E.Ct.H.R., 8 June 1976, Engel v. Netherlands, supra.
33 E.Ct.H.R., 21 February 1975, Golder v. United Kingdom, Publ. Court, Series A, vol. 18, p. 18, § 36.
34 E.Ct.H.R., 27 February 1980, Deweer v. Belgium, Publ. Court, Series A, vol. 35, pp. 24-25, § 48.
35 E.Ct.H.R., 23 September 1982, Sporrong and Lönnroth v. Sweden, Publ. Court, Series A, vol. 52, p.29, § 80.
36 See, with respect to civil cases, E.Ct.H.R., 9 October 1979, Airey v. Ireland, Publ. Court, Series A, vol. 32, pp. 1-16, §§ 20-28. For criminal cases, there is an explicit provision in Article 6, § 3, c, of the European Convention.
37 E.Ct.H.R., 16 December 1992, de Geouffre de la Pradelle v. France, Publ. Court, Series A, vol. 253-B,pp. 42-43, §§ 33-35.
38 E.Ct.H.R., 23 July 2002, Janosevic v. Sweden, no. 34619/97, §§ 83-90, ECHR, 2002-VII.
39 E.Ct.H.R., 28 May 1985, Ashingdane v. United Kingdom, Publ. Court, Series A, vol. 93, p. 24, § 57.
40 E.Ct.H.R., 23 October 1985, Benthem v. Netherlands, Publ. Court, Series A, vol. 97, p. 17, § 40.
41 E.Ct.H.R., 23 October 1985, Benthem v. Netherlands, ibid.
42 Cf. E.Ct.H.R., 10 February 1983, Albert and Le Compte v. Belgium, Publ. Court, Series A, vol. 58, p. 16, § 29.
43 E.Ct.H.R., 22 November 1995, Bryan v. United Kingdom, Publ. Court, Series A, vol. 335-A, p. 17, § 45.
44 E.Ct.H.R., 10 February 1983, Albert and Le Compte v. Belgium, supra, p. 16, § 29.

45 E.Ct.H.R., 23 September 1982, Sporrong and Lönnroth v. Sweden, Publ.Court, Series A, vol. 52, p. 30, § 84.
A stricter form of review seems to be required for certain categories of administrative acts, such as those relating to child care (see, e.g., E.Ct.H.R., 8 July 1987, W. v. United Kingdom, Publ. Court, Series A, vol. 121-A, p. 36, § 82).

46 E.Ct.H.R., 21 September 1993, Zumtobel, Publ.Court, Series A, vol. 268-A, p. 14, § 32; E.Ct.H.R., 25 November 1994, Ortenberg v. Austria, o.c., vol. 295-B, p. 50, § 34; E.Ct.H.R., 26 April 1995, Fischer v. Austria, o.c., vol. 312, p. 18, § 34.

47 Consult E.Ct.H.R., 27 November 1991, Oerlemans v. Netherlands, Publ.Court, Series A, vol. 219, pp. 21-22, § 56.

48 See E.Ct.H.R., 26 April 1995, Fischer v.Austria, Publ.Court, Series A, vol. 312, p. 18, § 34.

49 E.Ct.H.R., 23 June 1981, Le Compte, Van Leuven and De Meyere v. Belgium, Publ.Court, Series A, vol. 43, p. 23, § 51, b. Compare E.Ct.H.R., 10 February 1983, Albert and Le Compte v. Belgium, o.c., vol. 58, p. 19, § 36.

50 See E.Ct.H.R., 22 November 1995, Bryan v. United Kingdom, Publ.Court, Series A, vol. 335-A, pp. 17-18, §§ 44-47; E.Ct.H.R., 4 October 2001, Potocka v. Poland, no. 33776/96, § 57, ECHR, 2001-X.

51 E.Ct.H.R., 28 May 2002, Kingsley v. United Kingdom [GC], no. 35605/97, § 32, ECHR, 2002-IV, in which the grand chamber quotes from the judgment handed down in the same case by a chamber, on 7 November 2000, at § 58.

52 E.Ct.H.R., 28 October 1999, Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR, 1999-VII.

53 Same judgment, § 62.

54 E.Ct.H.R., 19 March 1997, Hornsby v. Greece, Rep., 1997-II, p. 510, § 40; E.Ct.H.R., 28 July 1999, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 66, ECHR, 1999-V.

55 E.Ct.H.R., 19 March 1997, Hornsby v. Greece, supra, p. 510, § 41.
56 E.Ct.H.R., 29 April 1988, Belilos v. Switzerland, Publ. Court, Series A, vol. 132, p. 29, § 64.
57 E.Ct.H.R., 28 June 1984, Campbell and Fell v. United Kingdom, Publ. Court, Series A, vol. 80, p. 39 , § 76.
58 E.Ct.H.R., 7 June 2001, Kress v. France [GC], no. 39594/98, § 69, ECHR, 2001-VI.
59 Cf. E.Ct.H.R., 22 June 2000, Coëme v. Belgium, no. 32492/96 et al., § 107, ECHR, 2000-VII.
60 See E.Ct.H.R., 22 February 1996, Bulut v. Austria, Rep., 1996-II, pp. 355-356, § 29 (implicitly).
61 E.Ct.H.R., 22 June 1989, Langborger v. Sweden, Publ. Court, Series A, vol. 155, p. 16, § 32; E.Ct.H.R., 22 November 1995, Bryan v. United Kingdom, Publ. Court, Series A, vol. 335-A, p. 15, § 37.
62 E.Ct.H.R., 22 October 1984, Sramek v. Austria, Publ. Court, Series A, vol. 84, p. 20, § 42.
63 E.Ct.H.R., 22 November 1995, Bryan v. United Kingdom, supra, pp. 15-16, § 38.

64 E.Ct.H.R., 26 October 1984, De Cubber v. Belgium, Publ. Court, Series A, vol. 86, pp. 13-14, § 24.

65 E.Ct.H.R., 28 September 1995, Procola v. Luxembourg, Publ.Court, Series A, vol. 326, p. 16, § 45.

66 The case, of Kleyn and others v. Netherlands, nos. 39343/98 et al., is still at the admissibility stage. A hearing on the admissibility and the merits took place on 27 November 2002.

67 E.Ct.H.R, 21 February 1990, Håkansson and Sturesson v. Sweden, Publ. Court, Series A, vol. 171-A, p. 20, § 64.

68 Consult E.Ct.H.R., 3 October 2000, Eisenstecken v. Austria, no. 29477/95, § 34, ECHR, 2000-X.

69 E.Ct.H.R., 11 July 2002, Göç v. Turkey [GC], no. 36590/97, § 47, ECHR, 2002-V.

70 E.Ct.H.R., 26 April 1995, Fischer v. Austria, Publ. Court, Series A, vol. 312, pp. 20-21, § 44.

71 E.Ct.H.R., 24 June 1993, Schuler-Zgraggen v. Switzerland, Publ. Court, Series A, vol. 263, p. 19, § 58; E.Ct.H.R., 21 September 1993, Zumtobel v. Austria, Publ. Court, Series A, vol. 268-A, p. 14, § 34.

72 Consult E.Ct.H.R., 8 December 1983, Pretto v. Italy, Publ. Court, Series A, pp. 12-13, §§ 25-27, and Axen v. Germany, o.c., vol. 72, pp. 13-14, §§ 30-32; E.Ct.H.R., 22 February 1984, Sutter v. Switzerland, o.c., vol. 72, pp. 14-15, §§ 32-34.

73 E.Ct.H.R., 23 June 1993, Ruiz-Mateos v. Spain, Publ. Court, Series A, vol. 262, p. 25, § 63.

74 See E.Ct.H.R., 24 June 1993, Schuler-Zgraggen v. Switzerland, Publ. Court, Series A, vol. 263, p. 18, § 52; E.Ct.H.R., 24 February 1995, McMichael v. United Kingdom, Publ. Court, Series A, vol. 307-B, pp. 53-54, § 80.

75 E.Ct.H.R., 24 February 1994, Bendenoun v. France, Publ. Court, Series A, vol. 284, p. 22, § 52.

76 E.Ct.H.R., 9 June 1998, McGinley and Egan v. United Kingdom, Rep., 1998-III, p. 1360, § 86.

77 See, among others, E.Ct.H.R., 30 October 1991, Borgers v. Belgium, Publ. Court, Series A, vol. 214-B, pp. 30-32, §§ 2-29; E.Ct.H.R., 20 February 1996, Lobo Machado v. Portugal, Rep., 1996-I, pp. 204-207, §§ 24-31, and Vermeulen v. Belgium, o.c., pp. 232-234, §§ 27-33.

78 E.Ct.H.R., 7 June 2001, Kress v. France [GC], no. 39594/98, §§ 72-76, ECHR, 2001-VI.

79 Same judgment, §§ 66-70.

80 E.Ct.H.R., 28 June 1978, König v. Germany, Publ. Court, Series A, vol. 27, p. 33, § 98. For a recent application, see E.Ct.H.R., 17 July 2001, Association Ekin v. France, no. 39288/98, § 68, ECHR, 2001-VIII .

81 E.Ct.H.R., 6 September 1978, Klass v. Germany, Publ. Court, Series A, vol. 28, p. 29, § 64.

82 E.Ct.H.R., 27 April 1988, Boyle and Rice v. United Kingdom, Publ. Court, Series A, vol. 131, p. 23, § 52.

83 E.Ct.H.R., 9 October 1979, Airey v. Ireland, Publ. Court, Series A, vol. 32, p. 18, § 35.

84 E.Ct.H.R., 6 September 1978, Klass v. Germany, o.c., p. 30, § 67.

85 E.Ct.H.R., 25 March 1983, Silver v. United Kingdom, Publ. Court, Series A, vol. 61, p. 43, § 116.

86 E.Ct.H.R., 25 March 1983, Silver v. United Kingdom, o.c., p. 42, § 113, c.

87 E.Ct.H.R., 18 December 1996, Aksoy v. Turkey, Rep., 1996-VI, p. 2286, § 95; E.Ct.H.R., 25 September 1997, Aydin v. Turkey, Rep., 1997-VI, p. 1895, § 103; E.Ct.H.R., 28 November 1997, Menteş v. Turkey, Rep., 1997-VIII, p. 2715, § 89.

88 E.Ct.H.R., 11 July 2000, Jabari v. Turkey, no. 40035/98, § 50, ECHR, 2000-VIII.

89 E.Ct.H.R., 5 February 2002, Čonka v. Belgium, no. 51564/99, § 79, ECHR, 2002-I.

90 E.Ct.H.R., 10 May 2001, Z. and others v. United Kingdom [GC], 29392/95, § 109, ECHR, 2001-V, and T.P. and K.M. v. United Kingdom [GC], 28945/95, § 107, ECHR, 2001-V.

91 This may already be the case as far as the suspension of the implementation of a challenged act is concerned. See supra, § 11, in fine.
92 Ringeisen v Austria A 13 (1971).
93 Le Compte v Belgium A 43 (1981).
94 See generally, Harris, 0’Boyle and Warbrick, The Law of the European Convention on Human Rights, 1995, pp. 174ff.
95 See Deumeland v FRG A 100 (1986) and Feldbrugge v Netherlands A 99 (1986).
96 Ferrazzini v Italy 13.7.2001, unreported.
97 Pellegrin v France 1999 VIII 251
98 Maaouia v France 5.10.2000, unreported
99 Pierre Bloch v France 1997 VI 2206
100 See Benthem v Netherlands A 97 (1985) and Ravnsborg v Sweden A 283-B (1994).
101 W v UK A 121 (1985).
102 Kingsley v UK 17.4.2002, unreported.
103 A 335-A (1995) .
104 Smith and Grady v UK 1999 VI 45
105 Delcourt v Belgium A 11 (1970)
106 Feldebrugge v Netherlands A 99 (1986).
107 Hadjianastassiou v Greece A 252 (1992)
108 The leading case is Airey v Ireland, A 32 (1979), where legal aid was required for the applicant in complicated and emotional judicial separation proceedings.
109 Ringseisen v Austria, above.
110 See, eg, Deumeland v FRG, above.
111 17. 4. 2002, unreported.
112 Hornsby v Greece 1997 II 495
113 See, eg, Lauko v Slovakia 1998 ????
114 Leander v Sweden A 116 (1987).