Administrative Procedure and Judicial Review in Austria

2021 ◽  
pp. 37-40
Author(s):  
Stefan Storr
Keyword(s):  
Judicial Review ◽  
Legal Protection ◽  
Judicial System ◽  
Administrative Authority ◽  
Administrative Procedure ◽  
Administrative Power ◽  
Fundamental Significance ◽  
General Article ◽  
Administrative Courts ◽  
Court Of First Instance

This chapter discusses administrative procedure and judicial review in Austria. In Austria, there exists a principle of the 'exclusivity of legal sources'. Legal protection is only possible against certain administrative legal sources. In general, Article 130 B-VG pronounces judgments on complaints by the administrative courts against rulings by administrative authorities for unlawful acts; against the exercise of direct administrative power and compulsion to carry out unlawful acts; and on the grounds of breach of the duty to reach a decision by an administrative authority. In principle, the administrative court has to examine the case comprehensively; in general, there is no exclusion for specific administrative matters. It is of fundamental significance for the Austrian administrative judicial system that an administrative court of first instance generally decides on the merits of the case. Only in very exceptional cases does it set aside the contested act by the authority and refer the case back to it.

Administrative Procedure and Judicial Review in Italy

2021 ◽  
pp. 62-64
Author(s):  
Diana-Urania Galetta ◽  
Paolo Provenzano
Keyword(s):  
Judicial Review ◽  
Administrative Authority ◽  
Judicial Process ◽  
The Public ◽  
Appeal Court ◽  
Administrative Procedure ◽  
Legitimate Interests ◽  
Administrative Courts ◽  
Council Of State ◽  
Administrative Justice

This chapter illustrates administrative procedure and judicial review in Italy. According to article 113 of the Italian Constitution, 'the judicial safeguarding of rights and legitimate interests before the organs of ordinary or administrative justice is always permitted towards acts of the public administration'. In Italy, judicial review of administrative action is performed by specific courts: a court of first instance, called Tribunale Amministrativo Regionale (TAR), which is established in every Region, and the Consiglio di Stato (Council of State), which acts as an appeal court. The judicial process before these courts is now regulated by the Code of Administrative Process (CAP). Article 7 CAP provides that the administrative courts have jurisdiction over all acts that the public administrations and legal entities equivalent to them adopt in the exercise of their administrative authority. Since 1889, the Italian system of administrative justice has centred on the provision that administrative acts can be annulled by the administrative courts only in cases of 'breach of law', 'misuse or abuses of power', and/or 'lack of competence'.

Administrative Procedure and Judicial Review in Lithuania

2021 ◽  
pp. 69-71
Author(s):  
Agnė Andrijauskaitė
Keyword(s):  
European Union ◽  
Public Administration ◽  
Judicial Review ◽  
General Rule ◽  
The European Union ◽  
The Public ◽  
Administrative Procedure ◽  
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'.

Administrative Procedure and Judicial Review in Switzerland

2021 ◽  
pp. 75-78
Author(s):  
Thierry Tanquerel
Keyword(s):  
Judicial Review ◽  
General Principle ◽  
Judicial Control ◽  
Administrative Procedure ◽  
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.

Constitutional Principles and Judicial Remedies in Switzerland

2020 ◽  
pp. 77-79
Author(s):  
Thierry Tanquerel
Keyword(s):  
Judicial Review ◽  
General Principle ◽  
Administrative Authority ◽  
Public Authorities ◽  
Federal Level ◽  
Administrative Procedure ◽  
Civil Court ◽  
Federal Constitution ◽  
Judicial Remedies ◽  
Federal Structure

In Switzerland, the law concerning the liability in tort of public authorities is complex, due to the federal structure of government, and it is still evolving. Until twenty years or so ago, the Federal Constitution had no such thing as a general principle of damages liability, but such liability has been governed by statute since 1958. Now Article 146 of the Federal Constitution of 1999 provides that the ‘Confederation shall be liable for damage or loss unlawfully caused by its organs in the exercise of official activities.’ This provision solidifies the liability of all bodies discharging public functions and powers on behalf of the Confederation, but it is cantonal law that governs the liability of cantons and municipalities. There is thus a potentiality for differentiation, though actually all cantons regulate public liability along the lines of Article 146. There is, however, a mixture of commonality and diversity concerning administrative procedure. There is still another element of differentiation concerning judicial review, because in some cantons (and on the federal level) the claim for damages must be brought to an administrative authority, while in others it must be brought to an administrative or to a civil court.

Administrative Procedure and Judicial Review in Ukraine

2021 ◽  
pp. 79-81
Author(s):  
Halyna Dovhan
Keyword(s):  
Public Relations ◽  
Judicial Review ◽  
Public Law ◽  
Administrative Procedure ◽  
Administrative Act ◽  
Administrative Courts ◽  
Administrative Proceedings ◽  
The Right

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.

Ansprüche und Klagen im Verwaltungsrecht

2019 ◽  
Vol 52 (2) ◽  
pp. 239-258
Author(s):  
Andreas Funke
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Reference Point ◽  
Legal Protection ◽  
Administrative Law ◽  
Administrative Courts ◽  
Judicial Actions ◽  
Inspiring Ideas

Claims and Actions in Administrative Law It is beyond dispute that administrative courts protect the rights of individuals. Yet how does this protection actually operate? In his recently published monograph “Actio, Anspruch, subjektives Recht” (2017), Johannes Buchheim suggests a fresh account of legal protection in administrative law issues. Buchheim develops an action-based model concerning the reconstruction of administrative law. The project questions the prevalent approach towards administrative law, labelled as the claim-based model. The claim-based model focusses on substantive claims, which may originate from a violation of an individual right or which may be established directly by a statute, a contract or anadministrative act. It conceives judicial actions as being strictly dependent on such substantive claims. The action-based model denies such a dependence. Instead, it assumes that the courts follow an autonomous logic of decision-making, perceiving the violation of a right only as the initial reference point. This article aspires, firstly, to identify Buchheim’s main objections, secondly, to clarify and to confine the claim-based model in some respects, and lastly, to examine the objections raised by Buchheim in detail. While the book offers a plethora of inspiring ideas, it finally does not succeed in establishing the action-based model. Judicial review is based on claims, not only on (violation of) rights.

scholarly journals ''Silence of the administration'' in the administration procedure that is being instituted before the real estate registry and cable duct cadaster

2021 ◽  
Vol 38 (2) ◽  
pp. 143-155
Author(s):  
Milica Torbica
Keyword(s):  
Real Estate ◽  
Legal Protection ◽  
Point Of View ◽  
The Other ◽  
Administrative Authority ◽  
The Real ◽  
The Real Estate ◽  
Administrative Procedure ◽  
Significant Damage ◽  
Administration Procedure

"Silence of the administration" represents the tool for the regular legal protection of the parties within the administrative procedure, whether the subject is the procedure being initiated by the parties who have a personal interest or due to the ex officio procedure. In both cases, either due to a long lasting procedure or to an untimely decision which is being rendered in relation to the terms envisaged by law from the side of the administration, significant damage is being endured. Moreover, in both cases, the inactivity of the administrative authorities has numerous aftereffects. The Real Estate Registry and Cable Duct Cadaster represent a Public Book which has data on immovable properties and rights regarding the very same necessary for rendering numerous other rights before the other state authorities and judiciary. Data referring to the Real Estate Registry and Cable Duct Cadaster represent the initial base while rendering the rights before the business banks and within the economic field, in general. Thus, cadaster data should be updated regularly, which presupposes both active and timely registration of documents in the Cadaster, whether based on the submitted documents for the purpose of the registration within the Cadaster, the very same documents to be adopted or a negative administrative act to be rendered. However, in practice, one can often encounter that this legal protection instrument of the parties cannot be applied, bearing in mind that non-acting in the administrative procedure which is being held before the Real Estate Registry and Cable Duct Cadaster has not always been caused by a non-compliance with the terms by the side of this administrative authority. Namely, the administrative procedure being held before the Real Estate Registry has its specific characteristics due to which this very Institute of the Administrative Law deserves a greater attention. The existence of the priority norm, i.e. the obligation of acting upon the requests of the order of their reception in the Real Estate Registry and Cable duct Cadaster, leads to the other point of view regarding the acting of the administrative authorities and decision rendering based either on the requests of the parties or based on ex officio within the terms envisaged by the Law.

scholarly journals Tendencies of Development of Legislative Regulation Appeal in Civil Process

2020 ◽  
Vol 15 (4) ◽  
pp. 42-48
Author(s):  
E. Yu. Boyko
Keyword(s):  
Judicial System ◽  
Judicial Discretion ◽  
Civil Process ◽  
Legislative Regulation ◽  
The Law ◽  
Court Of First Instance ◽  
Court Of Appeal

The article is devoted to the directions of improvement of appeal proceedings in the civil process, identified in the analysis of legislation and practice of its application, in connection with the reform of the judicial system. The author not only considers the questions of implementation of the court of appeal of its powers, justifies the need for disclosure of criteria allowing the direction of the court of appeal the case for a new trial in the court of first instance, the limits of choice in the exercise of judicial discretion outside of the petition of appeal, the improvement of term of making a petition of appeal, eliminate of the term “appeal determination”, enshrined in the law of procedure of familiarization with the act court of appeal and its further complaints, but also indicates ways of solving them.

scholarly journals Procedural features of consideration of social cases in the administrative court of first instance

2020 ◽  
pp. 49-59
Author(s):  
Vasyl Ilkov
Keyword(s):  
Key Words ◽  
Social Function ◽  
The State ◽  
Public Authorities ◽  
The Public ◽  
The Social ◽  
High Figure ◽  
Administrative Courts ◽  
Administrative Code ◽  
Court Of First Instance

The article is devoted to procedural features and evidence during the consideration of social cases. The share of administrative lawsuits received by district administrative courts in social cases is more than 30%, which is a high figure among cases falling under the jurisdiction of administrative courts. A person goes to court when his right has already been violated by the state authorities. The administrative courts ensure the implementation of the social function of the state. Allegations that administrative courts serve public authorities are unfounded. Evidence of the court is provided by the parties to the case. The court can only invite the parties to provide evidence and collect evidence on their own initiative. The principle remains fundamental, in cases of illegality of decisions, actions or omissions of the public authorities, the burden of proving the legality of its decision, action or omission rests with the defendant. There is a problem of the possibility of considering social disputes under the rules of summary proceedings with the summons of the parties to the case in the event that there is a need to obtain an explanation from the parties or to examine witnesses. There is a need for legislative regulation of the possibility for the court to consider social disputes in the manner prescribed by the provisions of Article 262 of the Administrative Code of Judgment of Ukraine, after the opening of proceedings in the manner prescribed by the provisions of Article 263 of the Administrative Code of Judgment of Ukraine. It is important to ensure the possibility to continue the consideration of the case in the simplified claim procedure, with the summoning of the parties to the court session, after the opening of the simplified proceedings without summoning the parties. Key words: social disputes, district administrative court, evidence, proving, general claim proceedings, simplified proceedings.

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