Administrative Procedure and Judicial Review in Ukraine

Administrative Act ◽

Administrative Courts ◽

This chapter evaluates administrative procedure and judicial review in Ukraine. The Constitution of Ukraine provides that 'Administrative courts function in order to protect the rights, freedoms, and interests of a person in the sphere of public relations'. According to the Code of Administrative Proceedings (CAP), all persons have the right to bring a case before the administrative court if they consider that their rights, freedoms, or legal interests have been infringed by the decision, action, or inaction of the empowered authority. While the Constitution states that the jurisdiction of courts covers any legal dispute, the CAP entrusts administrative courts with jurisdiction over all public-law disputes. Absent a law on administrative procedure or administrative acts, in such cases the courts use the provisions of the special law that regulates the concrete sphere. They examine the administrative act or measure from the viewpoint of its conformity with the criteria set forth in the CAP. If the court finds that there has been a breach of fundamental standards of administrative propriety and fairness, it is entitled to quash the contested act or measure and also to award damages.

Administrative Procedure and Judicial Review in Lithuania

10.1093/oso/9780198867609.003.0012 ◽

2021 ◽

pp. 69-71

Author(s):

Agnė Andrijauskaitė

Keyword(s):

European Union ◽

Public Administration ◽

Judicial Review ◽

General Rule ◽

The European Union ◽

The Public ◽

The Law ◽

Administrative Courts ◽

Administrative Proceedings

This chapter reviews administrative procedure and judicial review in Lithuania. The introduction of administrative justice into the Lithuanian legal system happened against the backdrop of Lithuania's 'unflinching' desire to join the European Union and was meant to strengthen the protection of individual rights and administrative accountability. Two cornerstone acts in this regard, the Law on Public Administration and the Law on Administrative Proceedings (APA), were adopted in 1999. Administrative courts were also established in the same year. Article 3 (1) APA spells out the general rule that administrative courts settle disputes arising in the domain of the public administration. All the acts and measures excluded from the competence of administrative courts are listed in Article 18 APA, which establishes the so-called negative competence of administrative courts. Meanwhile, Article 91 (1) (3) APA provides that the impugned administrative decision may be quashed if 'essential procedural rules intended to ensure objective and reasonable adoption of an administrative decision were breached'.

How many Instances in the Polish Administrative Procedure? Analysis of Normative Solutions in the Aspect of Procedures for Reviewing Decisions Issued by the Executive Bodies of Local Self-government

Lex localis - Journal of Local Self-Government ◽

10.4335/18.3.977-997(2020) ◽

2020 ◽

Vol 18 (4) ◽

pp. 977-997

Author(s):

Magdalena Maria Michalak ◽

Przemysław Kledzik

Keyword(s):

The Subject ◽

Administrative Courts ◽

The Republic ◽

Pursuant to the art. 78 of the Constitution of the Republic of Poland each party has the right to appeal against judgments and decisions issued in the first instance. The Constitution also stipulates that administrative courts control the activity of administration in at least two-tier proceedings. Pursuant to the above, in Poland, decisions are issued in two-tier general administrative proceedings and may be subject to review in two-tier court administrative proceedings. The number and structure of procedures of appeal against administrative decisions have been a subject of discussion for years. Criticism of the current solution comes, among others, from local self-government representatives whose bodies issue the largest number of decisions in Poland. These issues have recently become even more relevant due to statutory obligation of reviewing Polish legislation in terms of legitimacy of reducing the number of administrative instances. The subject of the study is an analysis of possibility and purposefulness of limiting the number of instances in the administrative procedure, conducted on the example of a procedure for reviewing decisions of local self-government bodies. The reflection was made taking into account systemic and procedural position of Self-Government Boards of Appeal.

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.

INSTITUTE OF ADMINISTRATIVE CLAIM: CURRENT STATE AND DEVELOPMENT PROSPECTS

Constitutional State ◽

10.18524/2411-2054.2021.43.240950 ◽

2021 ◽

pp. 28-34

Author(s):

O. H. Kostromina ◽

H. O. Babenko

Keyword(s):

Public Relations ◽

System Analysis ◽

Administrative Claims ◽

Legal Method ◽

Analysis And Synthesis ◽

Definition Of ◽

An administrative claim is one of the main institutions of administrative justice. To understand the institution of an administrative claim as a complex legal structure covering the right of a person to apply to an administrative court with a request, it is necessary to clarify the concept, legal nature, types of administrative claim. The purpose of the article is the theoretical and legal characteristics of the categories of the institution of administrative proceedings, the definition of the concept, the definition of the essence and structure of an administrative claim, the criterion for its classification, making proposals aimed at improving the Code of Administrative Procedure of Ukraine. The methodological basis of the research is a combination of general scientific and special methods of cognition. The research is based on the dialectical method of scientific cognition of the phenomena of reality in their development and interrelation. The achievement of certain research objectives led to the use of such methods as: the historical and legal method – when analyzing claims in administrative proceedings, the system analysis method made it possible to consider an administrative claim as a single system with its own structure and dynamics of development. The methods of analysis and synthesis, structural-functional, synergetic and other methods were also used, which made it possible to comprehensively explore the problematic aspects of understanding the institution of administrative claims. An administrative claim is understood as a material claim of the plaintiff for the protection of rights, freedoms and interests in public law relations, addressed to an administrative court. Various approaches to the classification of administrative requirements depending on the content are described. The internal structure of the administrative claim is described, in connection with which the provisions of the legislation are analyzed. The substantive and procedural aspects of the claim are highlighted. Analyzes the legal requirements for an administrative claim. It is noted that within the framework of administrative legislation, in particular in the Code of Administrative Procedure of Ukraine, the types of administrative requirements are not directly defined. It has been established that at the scientific and theoretical level, the main criteria for the classification of administrative claims are: the subject of an administrative claim, a method of procedural protection, a method of achieving procedural goals, the nature of material legal relations. The main tasks that an administrative claim solves as a procedural means of protecting rights, freedoms and interests in the field of public relations are determined.

Participants in Administrative Court Proceedings in Multi-Stakeholder Proceedings

Przegląd Prawa Administracyjnego ◽

10.17951/ppa.2020.3.123-143 ◽

2021 ◽

Vol 3 ◽

pp. 123-143

Author(s):

Jakub Polanowski

Keyword(s):

Public Announcement ◽

Procedure Code ◽

The Law ◽

Administrative Courts ◽

Court Proceedings ◽

Multi Stakeholder ◽

The Right ◽

Right Of Access

This article is conceptual in nature and addresses the application of the rules on the participation of participants in administrative court proceedings. The main thesis of the paper is based on the statement that a person who, as a party to administrative proceedings, was notified, pursuant to Art. 49a of the Administrative Procedure Code, of the activities of an authority by public announcement, may become a participant in administrative court proceedings after fulfilling the condition specified in Art. 33 § 1a of the Law on Administrative Courts Proceedings. The subsidiary thesis is that reasons of procedural efficiency require the adoption of such a limitation of the rights of the designated entities that will not infringe the essence of their right to a court and will not impede the exercise of that right by the parties and other participants to the proceedings. The purpose of this paper is to provide that Art. 49a of the Code of Administrative Procedure is one of the “special provisions” referred to in Art. 33 § 1a of the Law on Administrative Courts Proceedings. The reasoning adopted is based on the assumption that the interpretation of the above provisions should take into account both the requirements arising from the right of access to court and the right to be heard without unreasonable delay and the need to minimise the costs of proceedings. The described issue, based on national research, is of significant importance for practice and have not yet been discussed in more detail in the doctrine.

Directions of development of administrative courts’ jurisprudence in real property cases in 2020: Selected Aspects (Part I)

Nieruchomości@ : kwartalnik Ministerstwa Sprawiedliwości ◽

10.5604/01.3001.0014.7460 ◽

2021 ◽

Vol I (I) ◽

pp. 109-133

Author(s):

Anna Dalkowska ◽

Karol Rzęsiewicz

Keyword(s):

Public Administration ◽

Judicial Review ◽

Capital City ◽

Official Journal ◽

Real Property ◽

Judicial Decisions ◽

The Status ◽

The Subject ◽

Administrative Courts ◽

Administrative Proceedings

Jurisprudence of administrative courts on various aspects of real property law is extensive and multi- faceted. The main bulk of cases concerns real properties which are subject to the reprivatisation process that, in the absence of final solutions to re-privatisation predicaments and the multi-faceted effects of the Decree of 26 October 1945 on the Ownership and Use of Land Within the Boundaries of the Capital City of Warszawa, hereinafter referred to as the “Warsaw Decree” (promulgated in the official journal “Dziennik Ustaw” of 21 November 1945, No 50, item 279), which remains in force for over seventy years, are often the subject of judicial review of administrative decisions. Administrative court rulings play a significant role in real property cases and set the directions for future decisions by public administration bodies. The analysis of judicial rulings in real property cases will be limited to selected problems, which, given differing interpretations, are the cause of discrepancies in judicial decisions in administrative courts. This paper, which is the first part of the study, covers jurisprudence on the premise of death of a party during administrative proceedings, which has an impact on the potential invalidity of a decision and its ex tunc effects as well as the status of a party in real property proceedings.

Administrative Procedure and Judicial Review in France

10.1093/oso/9780198867609.003.0007 ◽

2021 ◽

pp. 50-52

Author(s):

Delphine Costa

Keyword(s):

Public Administration ◽

Judicial Review ◽

Administrative Law ◽

Public Law ◽

The Public ◽

Judicial Remedy ◽

Individual Decisions ◽

Laws And Regulations ◽

Administrative Justice

This chapter describes administrative procedure and judicial review in France. In French public law, no constitutional provision provides for judicial review of administrative measures. Nor is there a convention providing for judicial review of administrative measures. This is only envisaged by the laws and regulations, in particular the Administrative Justice Code and the Code of Relations between the Public and the Administration. The administrative courts exercise extensive control over the acts or measures of the public administration, including both individual decisions and regulatory acts, but some are nonetheless beyond judicial review. Where an act or measure is contested on procedural grounds, judicial review takes place only under certain conditions: the procedural defect must have deprived the applicant of a guarantee or it must have influenced the meaning of the decision taken. Two types of judicial remedy exist in administrative law: it is therefore up to the applicant to limit their application before the administrative judge.

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.

14. The grounds for judicial review

Constitutional and Administrative Law ◽

10.1093/he/9780198847120.003.0014 ◽

2020 ◽

pp. 309-353

Author(s):

Neil Parpworth

Keyword(s):

Judicial Review ◽

Civil Service ◽

Public Law ◽

Fiduciary Duty ◽

Bad Faith ◽

Natural Justice ◽

Legitimate Expectations ◽

Fair Hearing ◽

This chapter considers the grounds on which public decisions may be challenged before the courts. It begins with an overview of two cases—Associated Provincial Picture Houses Ltd v Wednesbury Corpn (1948) and Council of Civil Service Unions v Minister for the Civil Service (1985). The importance of these two cases is their distillation of the general principles. The discussion then covers the different grounds for judicial review: illegality, relevant/irrelevant considerations, fiduciary duty, fettering of a discretion, improper purpose, bad faith, irrationality, proportionality, procedural impropriety, natural justice, legitimate expectations, the right to a fair hearing, reasons, and the rule against bias. It is noted that principles often overlap, so that a challenge to a public law decision may be based on different principles.