An event promoting the Central European Professors’ Network coordinated by the Central European Academy was a webinar conducted on January 19, 2024 by Professor Bartosz Majchrzak (the Cardinal Stefan Wyszyński University in Warsaw, Poland) – one of the members of the above-mentioned Network. The subject of the opening presentation was the rule of law – a topic hotly debated recently at both national and international level (including European Union). The rule of law was analyzed in the context of public administration and administrative law. Good ground for such perspective was provided by a publication titled “HANDBOOK FOR MONITORING ADMINISTRATIVE JUSTICE”, developed in 2013 by the Organization for Security and Co-operation in Europe (hereinafter the “OSCE”), the Office for Democratic Institutions and Human Rights, and the Folke Bernadotte Academy (the Swedish government agency for peace, security and development, which inter alia provides training, research and expertise in order to strengthen peace-building and state-building in countries). It is worth noticing that the Handbook focuses on international, European and other regional standards, including OSCE commitments, as well as international and regional case law. It provides an excellent summary of this supranational context. According to the Handbook, the main objective of its “summary” is to promote the rule of law in public administration. The result of the webinar is thereby a series of conclusions on the essence and components of the concept of rule of law in this perspective.
The rule of law in public administration could in particular be analyzed through the prism of the “most fundamental fair trial standards” applicable at all stages of judicial-administrative proceedings. The right to a fair trial in administrative justice
derives directly from international and regional conventions on human rights, including: the International Covenant for Civil and Political Rights (hereinafter the “ICCPR”) [Article 14(1)] and the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the “ECHR”), [Article 6 (1)]. Furthermore, the core of the OSCE’s commitments related to administrative justice is enshrined in the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Co-operation in Europe (CSCE), Copenhagen 1990, and the Concluding Document of the Moscow Meeting of the Third Conference on the Human Dimension (1991).
The above-mentioned fair trial standards of judicial-administrative proceedings could be divided into two groups, i.e.: 1) general standards, including rights to: a fair hearing, a public hearing and an effective remedy; 2) detailed standards referring to the particular stages of judicial-administrative proceedings.
One of the crucial elements of international and regional fair trial standards is the right to a fair hearing, which is both an inherent human right and a key feature of rule of law in public administration. It derives from Art. 14(1) ICCPR and Art. 6(1) ECHR, but the Handbook notices that some of the administrative cases do not fall within the scope of those provisions as they concern only civil and criminal cases. Such a limitation does not apply to the American Convention on Human Rights and the African Charter on Human and Peoples Rights, which provide the analogous right. A central pillar of the right to a fair hearing is the independence and impartiality of a court or tribunal (a specialized administrative court or a court of general jurisdiction hearing inter alia administrative cases). Such courts shall be independent from executive and legislative agendas of any government. It is a prerequisite for holding a government accountable for the acts and decisions. Independence requirements are also related to the procedure and qualifications for the appointment
of judges and are strongly dependent on the security of their tenure, non-removability and non-transferability. In turn, impartiality refers to the objectivity of a judge evaluating the merits of arguments and evidence in a case and rendering a judgment. This matter can be of particular importance in relation to a judge dealing with administrative law matters as he or she is generally required to settle disputes involving public bodies. A judge being insufficiently independent (as a result of their appointment procedure, tenure, disciplinary system, financial dependence, etc.) is, therefore, less likely to be impartial when the State is involved as a party to proceedings.
Moreover, as a general rule, judicial-administrative procedures should be public and every citizen should be able to find out about the proceedings and their progress. However, this rule could be subject to limitations, especially for reasons of morality, public order or national security, interest of juveniles or privacy of the parties. Pursuant to the Council of Europe instruments, when court proceedings are conducted entirely in writing, documents and information about the case should be made publicly accessible, while maintaining due respect for the personal integrity and privacy of the persons involved.
Furthermore, international and regional instruments guarantee the right to an effective remedy as an appropriate administrative and judicial mechanism for addressing and deciding upon claims of violations under domestic law. In this context, the OSCE participating States have committed themselves to ensure the individual’s right to appeal to executive, legislative, judicial or administrative organs. They have also agreed that the right to ‘an effective means of redress shall apply to administrative decisions and regulations for individuals affected thereby’. Remedies cannot be illusory, e.g. if a court refuses to review the substantive issues related to
an administrative action, on the grounds that an executive body enjoyed full discretion, the appeal cannot be considered an effective remedy.
Moving to the detailed standards concerning the particular stages of judicial- administrative proceedings, it is necessary to begin by listing the standards referring to the initial phase of these proceedings. These are: reasonable time to initiate proceedings, effective access to a court or tribunal, equal access to them and availability of legal assistance and legal aid.
The standard of reasonable time to initiate judicial-administrative proceedings is based on the premise that the right to an effective remedy may be infringed by irrationally short deadlines for bringing it. At the same time, if the commencement of proceedings is subject to limitation periods, these provisions should be publicly available and the time limits should be clearly specified.
The effective access to a court or tribunal means that no individual shall be deprived of their right to claim justice, including in administrative cases. It concerns in particular the right to initiate judicial-administrative proceedings. The right of access to a court or tribunal requires a coherent system of regulations that is sufficiently transparent in its requirements so that applicants have a clear, practical and effective opportunity to exercise the right. However, it is not an absolute right and may be subject to legitimate restrictions.
The equal access to a court or tribunal guarantees that private persons have equal access to seek recourse or redress through administrative justice, and public authorities do not act in a discriminatory manner. Such a discrimination would be any distinction, exclusion, restriction or preference based on any grounds such as ethnicity, gender, language, religion etc. and whose purpose or effect would result in nullifying or impairing the recognition, enjoyment or exercise by any person, on an equal footing, of all their rights and freedoms.
The last standard in this category is an availability of legal assistance and legal aid. The right to access administrative justice requires the right to assistance and aid of legal counsel when the individual lacks the necessary means. The costs of the procedure, in particular of legal aid, should not prevent or discourage the filing of appeals.
The Handbook lists several standards referring to proceeding administrative cases before administrative court or tribunal, i.e.: right to an oral hearing, equality of arms, an adversarial trial and availability of preventive or interim measures.
The right to an oral hearing provides the party with the opportunity to present the case orally to the court. In fact, it is hard to perceive it as a ‘standard’ since the Handbook indicates that one of the features of administrative justice is the common use of written proceedings by administrative courts or tribunals. At the same time, it is stated that this right may be particularly important in cases where the administrative court or tribunal deals not only with matters of law, but with the assessment of facts.
The principle of equality of arms is of particular significance in judicial- administrative proceedings, where the parties are private persons and administrative authorities. It safeguards a private person’s capacity to actively participate in the proceedings to ensure its fairness. The principle means that the same procedural rights should be provided to all parties, unless distinctions are based on law and are justified. According to the Handbook, this principle also covers the right of access to evidence (to become familiar with it) and demands that each party be given the opportunity to contest all the arguments and evidence presented by the other party.
The above-mentioned principle is interlinked with the requirement for an adversarial proceeding, which means that procedure is conducted by the two parties who present their positions in court. In that context, it is also hard to talk about the ‘standard’ as the Handbook notices that ‘modern administrative justice systems often
manifest features of both adversarial and inquisitorial systems’. In the latter model, the conduct of the trial is largely in the hands of the judge who has powers to initiate motions, inquiries, expert opinions, etc. This is particularly important in administrative cases for reasons of public interest and to ensure a balance between private actors and public administration.
The effective remedy requires the existence of a right to interim or preventive measures, that is provisions preventing a situation in which the implementation of the contested administrative act could irreversibly affect the interests of a private person. Such provisions may stipulate e.g. that an appeal against an administrative act entails automatic suspension of its execution or this suspension is possible upon a formal request submitted to a judicial authority.
The last group of standards concerns the stage of deciding the case by administrative court or tribunal and these are: a right to a trial within a reasonable time, public and reasoned judgment as well as effective execution of judgments.
The right to a trial within a reasonable time is based on the assumption that excessive procedural delays might jeopardize both the effectiveness and the credibility of courts and tribunals. Of course, the ‘reasonableness of the length of proceedings’ is not a definitive category but depends on particular circumstances of an individual case. Factors to consider when determining reasonable time periods are, in particular, the complexity of the case, the conduct of the applicant and the conduct of the competent administrative and judicial authorities.
It is also important for judgments of administrative courts to be pronounced publicly (respecting, however, the principle of privacy), include adequate reasoning, justify the decision reached and respond to the arguments of the parties. The parties should have access to relevant judgments and judgments of general scope should be accessible to the general public.
Effective execution of judgments should be recognized as an integral part of a ‘trial’ for the sake of the right of a fair trial. An administrative court or tribunal must be empowered to implement, or ensure the implementation of its decisions. Consequently, administrative authorities should be held liable where they refuse or neglect to implement judicial decisions.
As a result of the above-discussion, the following conclusions can be drawn:
- The importance of the standards of judicial-administrative proceedings should be perceived primarily in the context of the assumption that fair proceedings, in which public administration is controlled, reinforce the key rule regarding the activities of this administration, i.e. that it is obliged to act on the basis and within the limits of the law.
- Although the Handbook cannot be directly considered a source of international law, even soft law, the binding nature of the standards contained in this publication should be assessed primarily through the prism of international agreements, as well as the principles of international or EU law from which these standards derive.
- In this context, a certain problem appears that the cited Art. 14(1) ICCPR and Art. 6(1) ECHR, as the main legal source of standards, have prima facie limited application to administrative matters. Against this background, I believe that the full application of these provisions to administrative court proceedings should be promoted, regardless of the subject of the administrative case to which these proceedings are related (whether or not this administrative case is of a civil or criminal nature).
- The presented catalog, in principle, contains an exhaustive list of standards guaranteeing a fair (reliable) judicial-administrative process. However, it would be worth considering to supplement it with the right of a party acting without a
professional proxy to legal assistance of an administrative court (namely to be provided with necessary instructions regarding the procedural situation), in order to equalize the chances of such a party, as a condition of ensuring equality of arms in a situation where the party’s procedural opponent is a public administration body always represented by a professional (its employee or proxy).
- The standards emphasize the principle of equality and non-discrimination, but they do not sufficiently address the problem of equal opportunities for persons belonging to “vulnerable groups” (in particular the disabled, the older persons, migrants or national and ethnic minorities) and, in fact, completely ignore the issue of provisions adequately strengthening such individuals’ procedural position in relation to other participants of the proceedings who do not belong to the above groups.
