Due Process Prior to Administrative Decisions and Effective Judicial Protection in Brazil: A New Perspective?

ICL Journal ◽  
2016 ◽  
Vol 10 (1) ◽  
Author(s):  
Ricardo Perlingeiro
Keyword(s):  
Due Process ◽  
Public Authorities ◽  
Administrative Procedure ◽  
Margin Of Appreciation ◽  
Due Process Of Law ◽  
Administrative Proceeding ◽  
Court Proceedings ◽  
New Perspective ◽  
Judicial Protection ◽  
Judicial Actions

AbstractIn view of the increasing number of repetitive judicial actions in public law issues, this text proposes reconsidering the guarantees of administrative due process of law - enshrined in the Brazilian Constitution of 1988 -, among them the effective independence of the administrative authorities, based on a comparative perspective between the Anglo-Saxon and Continental-European models concerning judicial protection of individual rights. The author is visibly concerned with searching for a better understanding of topics that are considered to be established dogmas in Brazilian law, such as the contradiction between the self-enforceability of administrative decisions and the need for the public authorities to initiate judicial actions against individuals; the distinction between the administrative procedure and the (judicial and non-judicial) administrative proceeding and their implications for individuals in court proceedings; impartiality without independence of the authorities in conducting a non-judicial administrative proceeding; scope of judicial review of the utilization of the margin of appreciation of factual/scientific matters in decisions made by public administrative authorities.

THE HUMAN RIGHTS FUNCTION OF THE JUDICIARY IN ADMINISTRATIVE PROCEEDINGS: INSTITUTIONAL AND FUNCTIONAL ASPECTS

2021 ◽  
Vol 11 (2) ◽  
pp. 205-225
Author(s):  
V.V. MOVCHAN
Keyword(s):  
Human Rights ◽  
Judicial System ◽  
System Control ◽  
Judicial Process ◽  
Public Authorities ◽  
Legitimate Interests ◽  
Constitutional Right ◽  
Court Proceedings ◽  
Administrative Proceedings ◽  
Judicial Protection

The article reveals the theoretical aspects of administrative legal proceedings, as one of the forms of the exercise of judicial power, the features and significance of the administrative judicial process in the mechanism of protecting the rights and freedoms of man and citizen, the analysis is given of the constitutional foundations of the human rights function of the judiciary, its essence and content, procedural actions. The author reveals the historical aspects of the formation and development of judicial protection in Russia, oreign experience and models of administrative justice are considered, the importance of administrative proceedings in the implementation of the human rights function of the judiciary in the Russian Federation when considering disputes with the participation of public authorities and citizens and the exercise of the rights, freedoms and legitimate interests of citizens is revealed. The author substantiates the advantages of the judicial administrative process as a procedural form of implementation of the human rights function of the judiciary and the implementation of the constitutional right to judicial protection, analyzes the reform of the judicial system of the judicial system, the creation of courts of appeal and cassation in the system of arbitration and general jurisdiction, substantiates the conclusion that the reform of the system of courts of general jurisdiction created organizational and judicial framework for the specialization of judges and court proceedings, the system of institutional intra-system control of the legality and validity of judicial acts, institutionally and functionally ensured the implementation of the human rights function of the judiciary and the availability of judicial protection in the system of courts of general jurisdiction.

Cases

2021 ◽  
pp. 89-292
Author(s):  
Giacinto della
Keyword(s):  
Comparative Analysis ◽  
Environmental Impact ◽  
Asylum Seeker ◽  
Due Process ◽  
Civil Servant ◽  
Public Consultation ◽  
Administrative Procedure ◽  
Due Process Of Law ◽  
Administrative Sanctions ◽  
Industry Representative

This chapter presents ten hypothetical cases. The first three cases include dismissing a civil servant without due process of law; the unwelcome asylum seeker; and deciding on a protected building without consulting experts. The second set of cases deal with an opaque administrative sanctions procedure; an administrative 'detention' without reasons; and the 'adequate' reasons for censorship'. These are followed by hypothetical cases concerning administrative orders and posthumous reasons; the industry representative that was not consulted; and citizens and environmental impact assessment. The final case focuses on the duty of public consultation. The chapter details the administrative procedure and judicial review in the legal systems selected for comparative analysis, with regard to the ten hypothetical cases.

scholarly journals Judicial Protection of Individuals in an Administrative Procedure by Means of Administrative Proceedings

2021 ◽  
Vol 6 ◽  
pp. 34-41
Author(s):  
Aleksandr I. Stakhov ◽  
Keyword(s):  
Russian Federation ◽  
Administrative Law ◽  
Public Authorities ◽  
Administrative Process ◽  
Legal Norms ◽  
Administrative Procedure ◽  
The Russian Federation ◽  
Constitutional Right ◽  
Administrative Proceedings ◽  
Judicial Protection

The article highlights and studies judicial protection of individuals and organizations (individuals) in the administrative process as a special way of implementing justice on the appeals of citizens and their associations for the protection of their rights, freedoms, and legitimate interests in the course of Executive (non-judicial) and judicial administrative processes from the perspective of an integrative understanding of the administrative process. Taking into account the direct effect of the norms of the Constitution of the Russian Federation, the legal basis for judicial protection of individuals in administrative proceedings consists of two components: 1) the constitutional basis for; 2) legal grounds. Conducted a comprehensive analysis of the legal norms that constitute the constitutional basis and a legislative basis for judicial protection of individuals in administrative process, in which: justified the constitutional right of individuals to protection in the administrative process through the administrative procedure; is General conclusion that the subject of this judicial protection are contested in courts decisions and actions (inaction) of administrativepublic bodies and officials; the author substantiates the allocation of administrative court cases on the protection of individuals in administrative proceedings, which are divided into separate categories depending on the nature of the legal consequences of disputed decisions, actions (inaction) of administrative and public authorities and officials, as well as the nature of the dispute being resolved. In accordance with art. 72 of the Constitution of the Russian Federation allocated administrative law and administrative procedural decisions and actions challenged in court, in administrative proceedings, is the typology that best reveals the current level of processualists administrative activities public administration, other administrative public authorities and administrative public officials operating in the Russian Federation, allows you to identify priority areas of optimization of administrative proceedings in cases of settlement of administrative law disputes.

Legal Identificatino of Administrtive Procedure

2019 ◽  
pp. 14
Author(s):  
VALERII KOLPAKOV ◽  
TETIANA KOLOMOІETS
Keyword(s):  
Subject Matter ◽  
Administrative Law ◽  
Public Authorities ◽  
Administrative Procedure ◽  
Scientific Issue ◽  
Number Of Factors ◽  
Legal Nature ◽  
The Subject ◽  
Administrative Proceeding ◽  
Legal Identification

Creation of the new court jurisdiction in Ukraine represented by administrative procedure gave rise to the relevant areas of scientific research, many of which are concerned with its legal identification and correlation with long-established legal categories. The analysis shows that differences in jurists’ opinions are an indication of the pressing scientific issue, addressing which will stimulate ongoing comprehension of the essential characteristics of the judicial appeal against acts and omissions by public authorities. Accordingly, the aim of this research is to carry out the legal identification of administrative procedure by showing its relation to the subject of administrative law and administrative proceeding. This has been done by examining the opinions of administrative law scholars on interpretation and correlation of such concepts as administrative procedure, subject of administrative law, administrative proceeding as well as their views on the norms of the Code of Administrative Procedure of Ukraine and provisions of other norms and regulations. It has been emphasized that renovation of the Ukrainian administrative law and formation of its modern paradigm are inextricably linked with the number of factors which include theoretical and practical findings in the sphere of administrative procedure, efficiency of the scientific support for the reforms of the administrative and legal institutions, establishing the patterns of their reformation, legal review of the actions being taken, as well as providing legal grounding for political and philosophical developments, along with generating legislative and organizational initiatives. This research also argues that administrative procedure is a fundamental component of the subject matter of administrative law and an integral part of the administrative proceeding. As a result of this, the authors conclude that administrative procedure, being of administrative and legal nature, constitutes the part of the subject matter of administrative law and administrative proceeding. It is therefore proposed that administrative proceeding be defined as an umbrella term for the regulatory activities of public administration in relation to exercising their authority.

scholarly journals Adoption of a judgement and exercising control of its performance by a court in administrative proceedings

2021 ◽  
Vol 118 ◽  
pp. 03029
Author(s):  
Evgenii Nikolaevich Kuliushin
Keyword(s):  
Public Law ◽  
Public Authorities ◽  
Law System ◽  
Judicial Control ◽  
Administrative Procedure ◽  
Illegal Acts ◽  
Administrative Proceedings ◽  
Judicial Protection ◽  
And Control ◽  
Court Of First Instance

The article examines the essence and content of the powers of the court of first instance to make a judgement and control its implementation in order to improve the effectiveness of judicial protection of violated rights of citizens and organisations against illegal acts of public law bodies, the correctness and timeliness of consideration and resolution of cases in public law disputes, prevention of violations in the area of public law relations, the possibility of reducing the burden on courts of first instance in various categories of public law disputes. The key focus is on the peculiarities of exercising by a court of powers to make court judgements and exercising control of their execution in public law disputes on the basis of historical-legal, comparative-legal and formal-legal methods of researching similar powers of courts in countries of the civil law system (France, Germany) and countries representing the common law system (England, USA), comparing the contents of the powers of the court in administrative proceedings in accordance with the Code of Administrative Procedure of the Russian Federation and the powers of the court in civil and arbitration proceedings. The use of historical-legal, comparative-legal and formal-legal methods for researching the content of powers to adopt a court judgement and exercise control over its execution made it possible to formulate conclusions regarding the scope of procedural actions of the court of first instance in administrative proceedings, the possibilities of improving the model for exercising judicial control over acts in public-legal authorities, correctness and timeliness of execution of court judgements taken against public law authorities in order to ensure that the weak side in administrative proceedings can be protected. The novelty of the work lies in the proof that in order to increase the effectiveness of the protection of the violated rights of individuals against unlawful acts of public authorities, it is necessary to improve the mechanism for the exercise by the court of powers to make a judgement and exercise control over implementing it.

Introducing Victim Impact Statement in India: Reconceptualizing Victim Status

2021 ◽  
pp. 251660692199175
Author(s):  
Devansh Dubey ◽  
Payas Jain
Keyword(s):  
Criminal Justice ◽  
Subjective Experience ◽  
Due Process ◽  
Not Given ◽  
Therapeutic Tool ◽  
Victim Status ◽  
Victim Impact Statement ◽  
The World ◽  
Due Process Of Law ◽  
The Right

The right to fair trial is inherent in the concept of due process of law, which now forms part of Article 21 of Indian Constitution after the Maneka Gandhi judgement. Pertinently attached with the same comes the responsibility of the criminal system to treat victims with increased awareness and sensitivity. However, the established convention shows that in planning and developing administration of criminal justice, proper attention is not given to the victims of crime in achieving goals of criminal justice; the major cause of it being that a victim is heard only as a witness not as a victim. A credible response to the said issue has emerged in the form of victim impact statement (VIS) in the modern legal system across the world. With that being said, the researchers through this article try to deduce the need for incorporating a VIS in India through the various jurisprudential understandings of what it means to be a victim, including the gap between the subjective experience of the sufferer and the interpretation of the same by others, and what restorative justice would mean to heal a victim. Establishing upon the same premise of victim status, the researchers try to suggest that the introduction of VIS, with the primary purpose of it being a therapeutic tool and not an instrument of changing the course of justice, will serve to make us reconsider our contours of a ‘victim’.

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