Overview on the legal instruments of the Council of Europe in the field of administrative law

• Author: Blerton Sinani
• Pages: 298-316

Overview on the legal instruments of the Council of Europe

in the field of administrative law

Assistant professor Blerton SINANI1

Abstract

The interest in administrative justice has b een growing in many countries recently.

At the co re of an accountable and transparent administration is the right to effectively

challenge acts and decisions that affect civil rights and obligations, and so also the d aily

life of individuals. Effective means of redress against administrative decisions require a

functioning system of administrative justice that provides fair trial guarantees.

Administrative justice is not limited to the guarantee of citizens’ rights. Its justification also

lies in the necessity to defend the public interest and to gu arantee a balance between

individual rights and the public interest. An administrative-court proceeding should be

public, held within a reasonable time, u ndertaken by an independent and impartial tribunal

established by law, and result in an enforceable judgment that shall be pronounced

publicly. In addition to interpreting the rights, the Strasbourg Court has pointed out that it

must be borne in mind that the European Convention on Human Rights (ECHR) is intended

to guarantee rights that are p ractical and effective. This pap er will analyze the certain

provisions of the European Convention on Human Rights regarding mainly with the right

to a fair trial and the right to an effective remedy and will try to give a concise

retrospective to some of the most interesting cases of a dministrative nature decided by the

European Court of Human Rights. Further, it will emphasiz e the framework of the Council

of Europe of existing and applicable recommendations in the area of administrative law

starting with alternative ways of resolution of administrative disputes and giving closure

with execution of administrative and judicial decisions.

Keywords: recommendations; administrative dispute; judicial control; fair trial;

effective remedy; public authorities.

JEL Classification: K23, K33

1. Introduction

The idea of judicial control of the public administration developed as part

of the democratic ideology of civic society. From the initial aspiration to introduce

judicial review of administrative acts, this idea developed into the modern

formulation of the right to administrative justice, even at global level. Guaranteed

rights to judicial review of administrative acts are part of the “package” of

democratization measures in transition countries2 and at once the right to judicial

review is part of the right to effective judicial protection. The national law within

the society (ubi societas ibi ius – where there is society, there is law) should be

1 Blerton Sinani - South East European University, Faculty of Law, Republic of North Macedonia,

blerton.sinani@seeu.edu.mk.

2 Ivan Koprić, Administrative Justice on the Territory of Former Yugoslavia, Budva 2005, p. 2.

Juridical Tribune Volume 9, Issue 2, June 2019 299

able to act as a dispute settlement legal instrument/mechanism and to guarantee

justice as a supreme legal value in specific public legal relations between public

administration and a private person. The relationship between public administration

and law is ensured by judicial control and assessment of legality over the

administrative acts. Administrative act according to legal theory, means an

individual, concrete legal act (administrative decision) issued by public

administration in administrative proceedings determined by law, decides, in

administrative matters, on rights, obligations or legal interests of individuals, legal

persons or other parties directly applying laws that govern the respective

administrative field.3 In other words, the administrative act is an individual legal

act of public administration with the capacity of authoritativeness and

enforceability, which on the basis of law decides in an administrative matter.4

Hence, judicial review of public administration is, in a sense, the heart of

administrative law. It is certainly the most appropriate method of inquiring into the

legal competence of a public authority. Judicial review is not only conducted in

order to protect citizens’ rights, but also to protect public interest and legal order.

Judicial review ensures the realization of the principle of legality of administrative

functioning as well as the principle of the rule of law.5

Judicial control over administration derives mainly, from the right to a fair

trial and the right to an effective remedy, according to the provisions of the

European Convention on Human Rights.6 Although the use of European

Convention on Human Rights initially applied only to civil and criminal

proceedings, the case law of the Strasbourg Court accepts that it can be used also in

administrative matters in the same time establishing the possibility of judicial

control over the executive branch of the Contracting States. Moreover, the Council

of Europe recommendations in the area of administrative matters emphasize the

3 Stevan Lilić, Upravno Pravo, Beograd, 2010, p. 263.

4 Zoran Tomić, Опште Управно Право (General Administrative Law), Beograd, 2017, p. 209.

5 See: Ivo Borković, Upravno sudovanje i Upravni Spor u Hrvatskoj u vremenu od 1990 do danas in:

Zbornik odluka Upravnog Suda Hrvatske 1977-2002, Zagreb 2002.

6 The European Convention on Human Rights (ECHR) entered into force in 1953 with binding legal

effect on all Member States of the Council of Europe. As a common European endeavor, it marks a

capital and impressive achievement for the Council of Europe, because it has created a common

European legal space for over 820 million citizens throughout the continent, establishing u niversal

standards in the area of international protection of human rights and freedoms. For the first time in

the history of international law, ECHR established the right to individual applications as a

supranational legal remedy may suspend or strike down national judgments” making states directl y

accountable to the European Court of Human Rights for violating the provisions of the Convention.

The individual who is given the right to individual applications gains a consolidated and powerful

position, indeed he is closer to the status of legal subject of international law. The right of individual

petition and the Court’s ability to offer individuals judicial protection are cornerstones of the

Convention system. – Alastair Mowbray, Cases, Materials, and Commentary on the European

Convention on Human Rights, United Kingdom, 2012, 1-10; Ch ristoph Grabenwarter, The

European Convention for the Protection of Human Rights and Fundamental Freedoms –

Commentary, United Kingdom, 2013, p. 1-7.