scholarly journals Procedural Safeguards under the European Convention on Human Rights in Public (Administrative) Law Matters

2018 ◽  
Vol 9 (2) ◽  
pp. 97-116
Author(s):  
Tina Sever
Keyword(s):  
National Level ◽  
Individual Case ◽  
Administrative Law ◽  
European Convention ◽  
Reasonable Time ◽  
The Rule Of Law ◽  
Administrative Procedure ◽  
Private Rights ◽  
Business Entities

Abstract The effectiveness of procedure is important for parties (e.g. citizens or business entities) to be able to exercise their rights in due time and is a key foundation of the rule of law. A State with an effective legal system provides a business-friendly environment, which is appealing for investments. The State decides on permits, licenses, taxes, etc. by applying administrative procedure. The aim of the paper is to identify and analyse such matters under public (administrative) law at the national level, which – due to their influence on private rights or obligations – fall under the civil or criminal limb of Article 6 of the ECHR and its requirements, as well as the requirements of Article 13. By means of a case study and descriptive-analytical and normative methods, the paper identifies comparatively selected cases and analyses the ECtHR test regarding reasonable time, focusing on overall procedure duration and the awarded compensations. The findings show that the ECtHR does not define reasonable time in abstracto. Therefore, the established violations among the states range from two-year procedures to nine years and more, depending on the circumstances of each individual case. Similarly, there are also variations in terms of compensation awarded.

Good Governance

2019 ◽  
Author(s):  
Henk Addink
Keyword(s):  
South Africa ◽  
Rule Of Law ◽  
Good Governance ◽  
National Level ◽  
Administrative Law ◽  
Modern State ◽  
The Rule Of Law ◽  
The Third ◽  
Legal Perspective ◽  
Further Development

The pivotal aim of this book is to explain the creation, development, and impact of good governance from a conceptual, principal perspective and in the context of national administrative law. Three lines of reasoning have been worked out: developing the concept of good governance; specification of this concept by developing principles of good governance; and implementation of these principles of good governance on the national level. In this phase of further development of good governance, it is important to have a clear concept of good governance, presented in this book as the third cornerstone of a modern state, alongside the concepts of the rule of law and democracy. That is a rather new national administrative law perspective which is influenced by regional and international legal developments; thus, we can speak about good governance as a multilevel concept. But the question is: how is this concept of good governance further developed? Six principles of good governance (which in a narrower sense also qualify as principles of good administration) have been further specified in a systematic way, from a legal perspective. These are the principles of properness, transparency, participation, effectiveness, accountability, and human rights. Furthermore, the link has been made with integrity standards. The important developments of each of these principles are described on the national level in Europe, but also in countries outside Europe (such as Australia, Canada, and South Africa). This book gives a systematic comparison of the implementation of the principles of good governance between countries.

scholarly journals Ameliorating the collateral damage caused by collateral attack in administrative law

2020 ◽  
Author(s):  
Dean Knight
Keyword(s):  
New Zealand ◽  
Individual Case ◽  
Administrative Law ◽  
Collateral Damage ◽  
Criminal Proceedings ◽  
Administrative Action ◽  
Unique Character ◽  
Private Rights ◽  
Straightforward Approach ◽  
Public Bodies

Collateral attack is the indirect challenge of administrative decisions, instruments or actions in civil and criminal proceedings for the purpose of determining private rights. Collateral challenges are a common way litigants seek to contest actions of the executive or other public bodies, and represent a different mechanism for the courts to exercise their supervisory jurisdiction over administrative action. The New Zealand courts have adopted a straightforward approach to the doctrine of collateral attack, generally allowing such challenges. This paper explores the principles that underlie the doctrine of collateral attack and the potential difficulties that the doctrine creates. It is argued that the courts should take a more principled approach to determining whether collateral attack should be allowed in any individual case. A number of "touchstones" are proposed to ameliorate any collateral damage to administrative law's unique character while still ensuring that people are able to challenge the invalidity of administrative instruments, decisions or actions as and when they arise in civil and criminal proceedings

scholarly journals Ameliorating the collateral damage caused by collateral attack in administrative law

2020 ◽  
Author(s):  
Dean Knight
Keyword(s):  
New Zealand ◽  
Individual Case ◽  
Administrative Law ◽  
Collateral Damage ◽  
Criminal Proceedings ◽  
Administrative Action ◽  
Unique Character ◽  
Private Rights ◽  
Straightforward Approach ◽  
Public Bodies

Collateral attack is the indirect challenge of administrative decisions, instruments or actions in civil and criminal proceedings for the purpose of determining private rights. Collateral challenges are a common way litigants seek to contest actions of the executive or other public bodies, and represent a different mechanism for the courts to exercise their supervisory jurisdiction over administrative action. The New Zealand courts have adopted a straightforward approach to the doctrine of collateral attack, generally allowing such challenges. This paper explores the principles that underlie the doctrine of collateral attack and the potential difficulties that the doctrine creates. It is argued that the courts should take a more principled approach to determining whether collateral attack should be allowed in any individual case. A number of "touchstones" are proposed to ameliorate any collateral damage to administrative law's unique character while still ensuring that people are able to challenge the invalidity of administrative instruments, decisions or actions as and when they arise in civil and criminal proceedings

Europeanization through Constitutionalism

2020 ◽  
pp. 536-559
Author(s):  
Madis Ernits ◽  
Karmen Pähkla
Keyword(s):  
Case Law ◽  
Administrative Law ◽  
European Convention ◽  
Constitutional Rights ◽  
Council Of Europe ◽  
Administrative Procedure ◽  
General Part ◽  
State Liability ◽  
Principle Of Legality ◽  
The Impact

This chapter discusses the impact on Estonian administrative law of the pan-European principles of good administration developed by the Council of Europe (CoE). It argues that there is no conceptual mismatch between Estonian law and the administrative law of the CoE. This is attested by the fact that the European Convention on Human Rights was one of the main models for the constitutional rights chapter of the Estonian Constitution and remains widely discussed in the case law of Estonian courts. Moreover, the laws on the general part of Estonian administrative law—the Administrative Procedure Act and State Liability Act of 2001—among other things, have been guided by the pan-European principles of good administration. At the same time the chapter expresses doubts regarding the significance of the soft law sources of the CoE because of the principle of legality prevalent in Estonian law, which presents a hindrance to their permeation.

scholarly journals Militarized masculinity and the paradox of restraint: mechanisms of social control under modern authoritarianism

2020 ◽  
Author(s):  
Rebecca Tapscott
Keyword(s):  
Local Level ◽  
National Level ◽  
First Century ◽  
Ordinary People ◽  
The Rule Of Law ◽  
Arbitrary Power ◽  
Social Discipline ◽  
The Relationship ◽  
Do So

Abstract The twenty-first century is marked by the rise of new forms of authoritarianism, many of which are characterized by the ‘paradox of restraint', in which reforms compliant with the rule of law are used to unshackle the ruler's arbitrary power. Despite a proliferation of scholarly studies on this topic, we still have limited understanding of how national-level authoritarian power reaches ordinary citizens in these contexts. This article identifies the performance of militarized masculinities as an understudied mechanism that does so. It offers two main contributions: first, it highlights how performances of militarized masculinities enact the paradox of restraint through gendered idioms, thereby magnifying the ambiguities of modern authoritarianism and diffusing them at a local level. Second, it recasts the conceptual utility of militarized masculinities, showing that the concept's inherent tensions between ordered discipline and unaccountable violence produce and project authoritarian power, giving militarized masculinities special potency as a mode of social discipline in these contexts. The article draws on feminist International Relations, employing grounded ethnographic research to illustrate how national-level power circulates locally. To do so, it first illustrates the relationship between the paradox of restraint and militarized masculinities using the cases of Putin's Russia and Duterte's Philippines. It then turns to an in-depth case study of a local dispute between soldiers and civilians in Museveni's Uganda to trace how gendered local encounters facilitate the transmission of national-level authoritarian power into the lives of ordinary people.

scholarly journals The Dutch Paradox

2020 ◽  
pp. 210-241
Author(s):  
Janneke Gerards ◽  
Frank van Ommeren ◽  
Johan Wolswinkel
Keyword(s):  
National Level ◽  
Case Law ◽  
Administrative Law ◽  
European Convention ◽  
Soft Law ◽  
Direct Impact ◽  
Founding Fathers ◽  
Almost All ◽  
Coherent Body ◽  
The Impact

Even though the Netherlands was one of the founding fathers of the CoE, the impact of CoE conventions and soft law on Dutch administrative law and the development of the principles of good administration is rather patchy and uneven. This ‘Dutch paradox’ can be explained by the much more significant and direct impact of the European Convention on Human Rights on both substantive and procedural national administrative law. At least partly, this impact can be explained by the existence of a coherent body of ECtHR case law that is relevant to almost all areas of administrative law and that can be readily and easily applied on the national level. Nevertheless, the chapter concludes that it might be useful for Dutch authorities to keep an eye on other CoE instruments that may be relevant for the development of general administrative law, especially because the ECHR provides for minimum protection only.

The Council of Europe and Pan-European General Principles of Good Administration

2020 ◽  
pp. 242-255
Author(s):  
Inger-Johanne Sand
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Family Law ◽  
Administrative Law ◽  
European Convention ◽  
Access To Information ◽  
Council Of Europe ◽  
The Rule Of Law ◽  
Procedural Rights ◽  
The Impact

This chapter discusses the impact of the pan-European principles of good administration on Norwegian administrative law. The chapter claims that the European Convention on Human Rights and other sources of the Council of Europe (CoE) have generally contributed to strengthening the ‘rule-of-law tradition’ in Norwegian law. This contribution is especially palpable in specialized fields like migration, family law and local self-government. However, in other fields, such as administrative procedural rights and access to information, the impact of the CoE seems to have been limited because the corresponding national regulations preceded many of the relevant conventions and recommendations of the CoE. The chapter concludes that Norway shows a willingness to be influenced by new administrative law standards developed by the CoE.

scholarly journals Absenteeism and the new 10% ruling in Norway: A case study

2019 ◽  
Vol 12 (1) ◽  
pp. 1-22
Author(s):  
Paul Thomas ◽  
Øyvind Hennum
Keyword(s):  
High School ◽  
High Schools ◽  
Participant Observation ◽  
National Level ◽  
Academic Progress ◽  
Individual Case ◽  
Careful Attention ◽  
Disciplinary Power ◽  
Documentary Sources

This study considers the issue of absenteeism in Norwegian high schools with a particular focus on the new controversial 10% ceiling, which began in August 2016. Data was obtained through documentary sources and participant observation in one high school with one of the highest absenteeism rates in the capital, Oslo. Employing Foucault’s ‘panoptic gaze’, the study also interrogates schools’ growing dependence on technology in self-reporting absence and enacting more effective forms of ‘disciplinary power’. The study argues that each school and each individual case warrant careful attention before macro-policies on a national level are enacted by politicians, who at best have a superficial familiarity with the challenges and uncertainties that constrain these students’ academic progress.

scholarly journals Administrative Delicts: A Case Study in Unlawful Municipal Administration

2019 ◽  
Vol 16 (1) ◽  
pp. 153-165
Author(s):  
Joseph Eliot Magnet
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Administrative Law ◽  
Abuse Of Power ◽  
The Rule Of Law ◽  
Municipal Administration ◽  
Statutory Power ◽  
Administrative Body ◽  
The Individual

Municipalities are prone to abuses of power by elected officials. The law books overflow with examples of municipal illegality. This threatens the rule of law. Courts require sufficient remedial authority to maintain the rule of law. An adequate remedy would simultaneously correct the illegal situation, deter repetition, compensate those injured, channel public outrage and, in certain cases, allow supervision of corrupt governmental processes or officials. To satisfy these requirements, a new head of liability is needed. Liability in damages should be imposed for intentional jurisdictional excess. The developing doctrine of administrative delict would provide for damages for deliberate and malicious abuse of power. Damages for an intentional or negligent failure of an individual or administrative body to operate within jurisdiction should be available either against the individual in his personal capacity or against the administrative body. Because many of the wrongs suffered as a result of the illegal use of power are intangible, exemplary damages should be readily available in an action for administrative delict. This remedy would also enable the courts to consider deterrence and breach of public trust in assessing the award. It is the responsibility of administrative law to maintain a sense of orderliness in public administration. The theory of administrative delict needs doctrinal nourishment in order to restrain the abuses of authorities imbued with statutory power.

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