Administrative Procedure and Judicial Review in Hungary

Administrative Action ◽

Basic Law ◽

Legal Remedy ◽

Administrative Measure ◽

Constitutional Right ◽

Judicial Procedures ◽

This chapter studies administrative procedure and judicial review in Hungary. Section (1) of Article XXVIII of the Basic Law of Hungary (the Constitution of 2011) regulates the right to a fair trial reproducing the text almost word-for-word as found in Article 6 of the European Convention on Human Rights (ECHR). Consequently, anyone effected by an administrative measure has the (constitutional) right to judicial review. Section (7) guarantees the right to legal remedy against decisions of the courts, the public administration, or other authorities that infringe their rights or demonstrable interests. The two regulations are effective even separately, but their combined effect is that the judicial review of administrative action is an incontestable constitutional right. Administrative courts decide on the legality of the administrative action from the point of view of substantive and procedural administrative law, the judicial review is regulated by Act I of 2017 on the Code on Judicial Review of Administrative Actions, while a lawsuit for damages is heard by the ordinary court in a civil law procedure regulated by Act CXXX of 2016 of the Code of Civil Judicial Procedures.

Administrative Procedure and Judicial Review in Germany

10.1093/oso/9780198867609.003.0008 ◽

2021 ◽

pp. 53-58

Author(s):

Lilly Weidemann

Keyword(s):

Judicial Review ◽

Fundamental Rights ◽

Access To Justice ◽

Protective Effects ◽

Basic Law ◽

Federal Statute ◽

The Right ◽

Substantive Law ◽

Subjective Rights

This chapter explores administrative procedure and judicial review in Germany. The German Basic Law contains a guarantee of access to justice. According to section 40(1) of the Code of Administrative Court Procedure (CACP), recourse to the administrative courts shall be available in all public-law disputes of a non-constitutional nature insofar as the disputes are not explicitly allocated to another court by a federal statute. German administrative court procedure generally aims to protect subjective rights. In general, all measures taken by a public authority are subject to review by courts. This principle forms an essential part of the fundamental rights constitutionally guaranteed. Thus, no measure by the public administration is excluded from this guarantee. The infringement of a procedural provision with protective effects does not necessarily lead to the right of the applicant to have the decision quashed. This usually requires the infringement of a right of the appellant resulting from substantive law. Damages cannot be claimed within the same (administrative) court proceeding that aims to quash an administrative decision.

Standards of Judicial Review of Administrative Action (1890–1910) in the Austro-Hungarian Empire

Administrative Justice Fin de siècle ◽

10.1093/oso/9780198867562.003.0002 ◽

2021 ◽

pp. 41-72

Author(s):

Angela Ferrari Zumbini

Keyword(s):

Judicial Review ◽

Administrative Law ◽

Public Affairs ◽

Main Theme ◽

Administrative Action ◽

General Principles Of Law ◽

Liberal Approach ◽

This chapter argues that, if France has been the home of administrative courts, Austria has greatly contributed to the development of administrative law with regard to administrative procedure. Thanks to the Austrian Administrative Court, established in 1875, administrative law has been increasingly important in the regulation of public affairs. The chapter analyses the causes, development, and effects of these features. One main theme is, of course, the scope and purpose of judicial review of administrative action. In this respect, the chapter shows the growth of litigation and the liberal approach followed by the Court. Moreover, the role of the Court as lawmaker is examined in the light of the general principles of law that it developed. . Such principles included legality and procedural fairness, with particular regard to the right to a hearing and the duty to give reasons. Considered as a whole, they required public administrations to act reasonably rather than arbitrarily. Finally, it was judge-made law that constituted the basis for the codification of 1925.

Administrative Procedure and Judicial Review in Switzerland

10.1093/oso/9780198867609.003.0014 ◽

2021 ◽

pp. 75-78

Author(s):

Thierry Tanquerel

Keyword(s):

Judicial Review ◽

General Principle ◽

Judicial Control ◽

Administrative Action ◽

Federal Constitution ◽

Judicial Authority ◽

Administrative Courts ◽

The Right ◽

Procedural Rights

This chapter examines administrative procedure and judicial review in Switzerland. Article 29a of the Federal Constitution (Cst.) provides that 'In a legal dispute, every person has the right to have their case determined by a judicial authority. The Confederation and the Cantons may by law preclude the determination by the courts of certain exceptional categories of case'. It is widely recognized that Article 29a Cst. grants the right of judicial review of administrative action to everyone whose rights or obligations are affected by such an action. Judicial review of administrative action is entrusted partly to courts with general jurisdiction, partly to specialized administrative courts, and partly to specific independent appellate committees. As a general principle, procedural rights are deemed 'formal rights' by the Federal Tribunal, whose violation would cause the act or the measure at stake to be quashed irrespective of its substantive merits. However, there are certain acts or measures issued by Swiss authorities which escape judicial control, when those acts or measures are primarily of a political nature. When an act is appealed before a court, the only question at stake is the validity of the act. If the court finds it unlawful for procedural or substantive reasons, it will either quash it or modify it to make it lawful.

Administrative Procedure and Judicial Review in Spain

10.1093/oso/9780198867609.003.0013 ◽

2021 ◽

pp. 72-74

Author(s):

Oriol Mir

Keyword(s):

Judicial Review ◽

Administrative Law ◽

The Other ◽

Fully Integrated ◽

Administrative Action ◽

Spanish Constitution ◽

Administrative Jurisdiction ◽

The Right ◽

Judicial Protection

This chapter discusses administrative procedure and judicial review in Spain. The Spanish Constitution of 1978 (CE) devotes two central provisions to judicial review of administrative action. Article 106(1) CE, located in Part IV on government and administration, establishes that 'The Courts control the power to issue regulations and to ensure that the rule of law prevails in administrative action, as well as to ensure that the latter is subordinated to the ends which justify it'. On the other hand, Article 24(1) CE enshrines the fundamental right to effective judicial protection, which also includes protection against administrative action: 'Every person has the right to obtain the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he go undefended'. Judicial review is usually performed by specific courts fully integrated into the judiciary, the so-called jurisdicción contencioso-administrativa (administrative jurisdiction), competent to review administrative action subject to Spanish administrative law.

Direct Judicial Review of Administrative Action under Section 10(c) of the Administrative Procedure Act

Harvard Law Review ◽

10.2307/1336597 ◽

1949 ◽

Vol 62 (7) ◽

pp. 1216 ◽

Cited By ~ 2

Keyword(s):

Judicial Review ◽

Administrative Action

Vestnik of the St. Petersburg University of the Ministry of Internal Affairs of Russia ◽

Problems of implementation of constitutional rights and freedoms of man and citizen in the context of COVID-19

10.35750/2071-8284-2021-1-42-53 ◽

2021 ◽

Vol 2021 (1) ◽

pp. 42-53

Author(s):

Pavel Astafichev

Keyword(s):

Cultural Values ◽

Separation Of Powers ◽

Legal Regulation ◽

Point Of View ◽

Constitutional Rights ◽

Personal Privacy ◽

Education Access ◽

Constitutional Principle ◽

Constitutional Right ◽

The article is devoted to the study of a range of problems concerning the implementation of constitutional human rights and freedoms in the context of the threat of the spread of a new coronavirus infection. The author states that from the point of view of the implementation of the institution of constitutional rights and freedoms of man and citizen, the legal regulation pattern was likely to be the strengthening of guarantee of the constitutional right to the protection of life and health, in part, to the detriment of other constitutional rights and freedoms, first of all – the right to freedom of movement, personal privacy, work, freedom of individual enterprise, right to education, access to arts, culture and cultural values and use of cultural establishments. In case of COVID-19, preference was forced upon de facto federalism, which implies a reasonable decentralization of the subjects of jurisdiction and powers, vertical sharing of powers to guarantee the constitutional principle of separation of powers. The article proves that the executive power has the right to plan and organize sanitary and anti-epidemiological, preventive and even restrictive measures, but it cannot limit the constitutional rights and freedoms of citizens bypassing the will of the representation of the people in a democratic society. In extremis, when circumstances require an immediate solution, it is possible only for a very short time, used by a representative body to fully discuss and make a proper decision.

State system of intellectual property protection in Ukraine: development trends in modern conditions

Law. Human. Environment ◽

10.31548/law2021.01.010 ◽

2021 ◽

Vol 12 (1) ◽

Author(s):

Svitlychnyi Oleksandr ◽

Keyword(s):

Intellectual Property ◽

Legal Protection ◽

Intellectual Property Protection ◽

The State ◽

State System ◽

International Standards ◽

System Structure ◽

Basic Law ◽

Constitutional Right ◽

Today, the protection of intellectual property rights and legitimate interests of citizens is guaranteed by Article 55 of the Constitution of Ukraine, which provides and guarantees to everyone who uses all national forms of legal protection, protection of rights and freedoms in court. According to the second part of Art. 124 of the Basic Law, the jurisdiction of the courts extends to any legal dispute and all legal relations arising in the state. In addition to the constitutional right to administrative and judicial protection of intellectual property, the rules of special legislation in the field of intellectual property also determine other types of protection. In particular, part of the first article. 52 of the Law of Ukraine «On Copyright and Related Rights», to protect their copyrights and (or) related rights, entities have the right in accordance with the established procedure to apply to the court and other authorities in accordance with their competence. It is emphasized that the specifics of the protection of intellectual property is that there may be different ways to protect the violated subjective right to choose the person whose rights are violated. Today, the state system of intellectual property protection in Ukraine has an extensive system of state bodies involved in ensuring the protection of intellectual property. Based on the analysis of normative legal acts and scientific opinions, the article analyzes the activities of public administration entities in the field of intellectual property protection (Ministry for Development of Economy, Trade and Agriculture, National Intellectual Property Authority, Ukrainian Institute of Intellectual Property, Department of Intellectual Property). It is noted that in connection with the reorganization of the state system of intellectual property protection, instead of a three-tier structure, a two-tier structure is proposed. It is established that the current standing of the state system of intellectual property protection does not fully comply with international standards and principles in the field of intellectual property. It is proved that the presented state system of intellectual property protection contains significant shortcomings, the ways of improvement its activities are proposed. Keywords: state system, structure, protection, intellectual property, functions, improvement

LIMITATION OF THE RIGHT TO FREEDOM OF SPEECH ON THE INDONESIAN CONSTITUTIONAL COURT CONSIDERATION

Indonesian Law Journal ◽

10.33331/ilj.v14i1.45 ◽

2021 ◽

Vol 14 (1) ◽

pp. 19-36

Author(s):

Titis Anindyajati

Keyword(s):

Social Media ◽

Judicial Review ◽

Hate Speech ◽

Freedom Of Speech ◽

Comparative Approach ◽

Public Order ◽

Constitutional Court ◽

Social Media Platforms ◽

Constitutional Right ◽

Nowadays, everyone tends to use the right to freedom of speech without limitation, such as emergences of hate speech expression on various social media platforms. However, such expression is regulated by Article 28, paragraph (2) of the ITE Law and deemed to be contrary to public order. On the other hand, this law was considered by some people as a criminalization towards the right to freedom of speech. This paradox becomes a big issue that never ceases to be discussed. That is why Constitutional Court had conducted judicial review on some norms related to freedom of speech. This study aims to analyze the Constitutional Court decision towards the polarity of the right to freedom of speech and the public order. This study uses normative research with the statutory, analytical and comparative approach. Therefore, the results show the importance of limitation in implementing the freedom of speech to protect the constitutional right of society as stated in the 1945 Constitution. Despite the already decided judicial review by the Court, there is still an urgency to revise The ITE law in order to clarify certain rules related to hate speech in social media.

Sustainability Symbol of Justice

European Journal of Interdisciplinary Studies ◽

10.26417/ejis.v3i1.p82-87 ◽

2017 ◽

Vol 3 (1) ◽

pp. 82

Author(s):

Noor Farihah Mohd Noor

Keyword(s):

Quality Of Life ◽

Judicial Review ◽

High Quality ◽

Public Power ◽

Administrative Action ◽

Judicial Scrutiny ◽

Quality of life has very much to do with being sustainable. In a country where development and money is the means of progressing making profits, are unavoidable. But does the quest for progress hamper sustainability? Sustainability is important because it reflects a balance between freedom and power, independence and authority, rich and poor, justices and oppression. We have seen much oppression that emerges from exercising public power. Despite the formation of institution like integrity bodies, separate organizations to combat corruptions, tribunals and the like, yet public oppression never subside. Rudeness, unwillingness to treat the complainant as a person with rights; refusal to answer reasonable question; neglecting to inform complainant on request of her entitlement; knowingly giving misleading or inadequate advice; ignoring valid advice or overruling consideration which would produce an uncomfortable result for the overuler; offering no redress or manifestly disproportionate redress; showing bias on colour or whatever ground; refusing to inform adequately the right of appeal ; failure to mitigate the effect of rigid adherence to which it can produce manifestly inadequate treatment are all forms of malfeasance of the modern days. The focus of this paper thus is to look at the possible ways of combatting bad administration via judicial review of administrative action. What’s interesting is the ability of the court to tease out the complicated issues so that justice could be delivered. Justice is far-reaching if it can be exercised beyond merely the judicial scrutiny. Being able to address the lack of justice is in fact a reflection of sustainability and high quality of life.

Hungary, Poland, and Romania

Tort Liability of Public Authorities in European Laws ◽

10.1093/oso/9780198867555.003.0019 ◽

2020 ◽

pp. 329-338

Author(s):

Giacinto della Cananea

Keyword(s):

Human Rights ◽

European Convention ◽

Empirical Question ◽