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Accueil arrow newsitems arrow ECHR President Raimondi to EF on Discretionary Power: Decision-Making proces(Dialogue State-Citizen?

ECHR President Raimondi to EF on Discretionary Power: Decision-Making proces(Dialogue State-Citizen?

Ecrit par ACM
jeudi, 25 janvier 2018

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*Strasbourg/ECHR/Angelo Marcopolo/- Replying to an "Eurofora"s Question at the Annual Press Conference of ECHR, its experienced President, Guido Raimondi from Italy, explained that the PanEuropean Court of Strasbourg "is Developing" quite wide possibilities for Judicial Control of Public Authorities' Discretionary Power, in order to Prevent eventual Abuse vis a vis Citizens, inter alia, also by imposign the Respect of a Number of Rules, concerning the Decision-Making process of any Public Administration, (f.ex., Prior Information of affected Citizens, Contradictory Procedure, Sufficient and Correct Motivation of Decisions, etc), i.e. in a way quite similar to an elementary Dialogue between States and Citizens Before Taking Important Decisions which Affect their Lives and/or Society at large, as "Eurofora"s Wider Project and Views support since a long time.


Such ECHR's moves (that President Raimondi analyzed here in a Crystal-clear way) coincide also with Both relevant EU Developments, particularly since Lisbon Treaty, as well as with even more Recent COE's PanEuropean Legal Space's own developments, as "Eurofora" has already Highlighted recently, (See, f.ex.: http://www.eurofora.net/newsflashes/news/coeruleoflawchecklistandeuroforaproject.html, etc).


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- In our Question, "Eurofora" started by pointing at the Fact that : -"A Few Months ago, in Strasbourg, CoE's Parliamentary Assembly endorsed a Measure adopted by the Venice Commission, (supported also by the Congress of Local/Regional Authorities of Europe : CLRAE), which concerns a General Mechanism, for All (COE's 47) Member Countries, about the relations between Citizens and Public Authorities, in order to Prevent Risks of Abuse of Discretionary Power."


- "I.e. when a State can Decide Whatever they like, in the Substance of the matter, But has to Respect a Series of (Decision-Making Process') Rules, that we know also in Adminstrative Law : As, f.ex., to Inform the Persons involved, to Hear them Before it Decides, to present a Motivation that is Sufficient, (Legally and Factaully) Correct, etc", we explained in this regard.  

 

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 - "Obviously, it's Not Directly and Explicitly Linked with some ECHR Articles. But, according to your Experience, is there Something - or there Might be Something, Hopefully - inside the PanEuropean Mechanism for Human Rights, - as there are some Similar things in EU Law, after Lisbon Treaty (EIF : 2010) - which Could Develop, in the foreseable Future, a kind of Guarantee against Abuse of Discretionary Power ?", "Eurofora" asked ECHR President Raimondi.


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- ECHR's President reacted Positively, as he said, - "On your Interesting Question, concerning (Public Authorities') Discretionary Power, and possible Control by our (PanEuropean) Court :"


- "This is an Interesting Question, especialy Because the Range of (Public) Administrative activities, and the Role of the State in the Social Life, Developed and Increased, across the board, in CoE's 47 Member States, in Recent Years", Raimondi observed from the outset.


 - "But we (ECHR) have Developed a quite Rich Jurisprudence on that Issue : "


 - Even if, as "You Know, UnLike of Article 47 of (EU's) Charter of Fundamental Rights, which Covers All sorts of Jurisdiction (i.e. also Administrators, and Not only Judges), Our (CoE's) corresponding Provision in the (PanEuropean) Convention (on Human Rights), i.e. Article 6, (which is) Providing Guarantees of "Fair Trial", does Not Apply to All Forms of Jurisdictional Proceedings".


 - "So, in order to Trigger the Protection of Article 6, you Need Either a writer Obligation of a Civil Rights, or an Accusation in Criminal matters. Of course, these 2 Noions are developed Autonomously by the Case-Law of ECHR",  (which, therefore, can have a Wider Scope of Action, if it wishes so : See Infra).


=> "In this connection, the activity of the Public Administration may Fall Within he Scope of Application of Article 6 : Either Because a Civil Right is at Stake , either because what is considered as an Administrative Action in the National Law, is considered, in the Autonomous Evaluation of ECHR, (Comp. Supra), as a <<Criminal Sanction>>, which Triggers the Protection of Article 6".


 - "Of course, it's a Delicate Question, Because we are confronted with the Theory of Separation of Powers. So, we (ECHR) Require that, when Article 6 Applies, the Judge has to have what we call "Full Jurisdiction". But this has to be understood with Caution, when it comes to the Control of Activities of the Public Administration", he warned. "Because of the (Constitutional) Principle of Separation of Powers".


 - "We (ECHR) have developed a Rich Jurisprudence on this : I'd say, the Most Important Case in this direction is "Sigma TV against Cyprus", that you may know", President Raimondi indicated.


 - "And there are a Number of Principles, which have been developed, in this connection : One of them, is, for instance, that, if the Judicial Body, which is called upon to Review judicially the Behavior of the Public Administration, has Not the Power to Assess the Facts, and canNot Rely on an Independent Assessment of the Facts, that is, for instance, a Problem, in the context of Article 6 !", he pointed out. "And this is one the Examples".


 - "So, the (ECHR's relevant) Jurisprudence is, Already, Rich, and it is Developing".


 - F.ex., "there is a Case which is Pending : Ramos Nunas v. Portugal", which will be Delivered in the Forhcoming Months, by the Court, and may provide some Further Clarification on that Issue", he Announced in fine.

 

+ As for a Comparison with the relevant EU Law, the presence of ECJ's President, Tomorrow in Strasbourg, at the Official Opening of the New Judicial Year of 2018, (on the occasion of which, is organized a Timely Seminaire focused on "the Authority of Judicial Power" : Comp. Supra), might be very Interesting, potentially, in this regard too. ECHR and ECJ have indeed, Recenly developed a very close Cooperation, President Raimondi stressed earlier Today.

 

 

(../..)


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    The recent paradox of freezing EU Talks with front-runner Croatia, while continuing controversial EU - Turkey talks, despite Zagreb's acceptance of Refugees' Human Rights to return, that Ankara refuses fex. in Cyprus, while both have "Good Neighborhood" problems vis a vis Slovenia, or Greece, Cyprus and Armenia respectively, can it be justified by the non-fullfilment of EU criteria, as Slovenia says, or, is it "Double Standards" ?    

The question became unavoidable after statements by Presidents of Slovenia and Croatia, Tuerk and Mesic, respectively, to "EuroFora", exclusively or among Strasbourg's journalists this week at the CoE, on the sidelines of its 2009 Summer University for Political Schools, which topically brought them together as successive key-note speakers.


    Comming only a few Months before EU checks Turkey's compliance to its commitments on Cyprus, etc., scheduled for December 2009, this obviously has a special importance for the coherence of EU Enlargement's principles.

     Suspension of EU Negotiations is a normal consequence in case of a Candidate Country's failure to fullfil EU Conditions, such as "Good Neighborhood relations", stressed at first Slovenian President Danilo Tuerk, current CoE's chair.

    But, regarding EU's Criteria,  there shouldn't be any "Double Standards",  reacted Croatian President Stjepan Mesic, commenting the fact that Turkey's controversial EU negotiations continue, while they were recently "freezed" in the case of Croatia, an "unquestionably European Country", which oficially accepts to respect Refugees Human Rights, contrary to Ankara's notorious refusals or reluctance.                                       

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                                                                                                                                                                                                                                                                                                                                                           - "EU itself has set as a Criterium (for EU Enlargement) the "Good Neighborhood relations",  and their absence justifies the "Suspension" EU Negotiations, (f.ex. with Croatia), because of a Border dispute affecting the territorial integrity of an EU Member Country, stressed Slovenian President, Danilo Tuerk, CoE's Chairman in office (May - November 2009), speaking to Journalists in Strasbourg including "EuroFora".    

Questioned earlier what "consequences on EU's Enlargement policy" can have the "Ban on EU Membership Negotiations", imposed to Croatia, Tuerk replied that "this question comes down to the fulfillement of (EU) Criteria for membership. One has to look at each Candidate Country ., from the point of view whether it fullfils the Criteria that EU has set. One of them are Good Neighborhood Relations, I'd like to remind. And also, there are other factors, such as Justice, Home affairs, Rule of Law, and others".


    - "Now, ..Candidate Countries are at Different Levels of fulfillement of Criteria", he observed.

    - " Croatia is obviously the closest to that. I'm rather optimistic : I think that in the coming Months we'll have an opportunity to look at all these issues constructively and hopefully we'll be able to make progress". "My main concern, at this point, is the situation in Bosnia : We haven't seen enough progres domesticaly. We haven't seen enough during ..political parties within their country.We need a New Energy, a new energetic move towards the Candidature for EU membership. "Other (Western Balkan) Countries (Serbia, Montenegro, FYROM, Albania) have been making soaring Progress, and I think that they should be ready, in a few Years, for the Candidate status".

    - "As far as the Western Balkans are concerned, .. nobody should be left outside" the EU, Slovenian's President concluded, ommitting to mention Turkey's controversial EU bid.

    - "This process may be seen as Slow, but..  Slovenia has also has also been exposed to various "Booms of Slowness" in our accession period. But now we can say that the process was relatively quick, because changes which occur after becoming EU member, are quite large, and they require proper Preparations before the (EU) membership becomes a new factor, an impacting line for a new (EU) member country".
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EU "Solidarity" ?
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Slovenian statements made some participants from certain 3rd Countries as FYROM, etc. claim that "the Principle of EU Solidarity" would "produce a.. rising European Union Nationalism (sic !), against Non-EU Countries", as they said, asking unhappy foreign countries to form a "bloc" to exert pressure on the EU...    

But Croatian President Stjepan Mesic dismissed that, supporting "EU Integration", "after the Economy also in Political" issues, as "the achievement" of our times. In EU there is "diversity, but it's United", he stressed, "EU has to be United so that it can become a central factor of Peace" also at the surrounding areas, he replied.

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Speaking later exclusively to "EuroFora", the experienced twice President of Croatia, former President of the International "Non-Aligned" movement, denounced "Double Standards" in the way EU treats recently Croatia compared to Turkey :   

 - "I think that there shouldn't be Double Standards", stressed the Croatian President, in reply to a Question comparing the freeze of EU - Croatia talks, with the continuation of EU - Turkey talks, despite the fact that Croatia is an "unquestionably European country", while Turkey's EU bid is notoriously controversial.


    Mesic was reacting to the observation that, even if he confirmed his "respect of Refugees' Human Rights to return, etc. (See infra), nevertheless, EU talks are suspended with Croatia.. While for oher, controversial candidates, who refuse to respect Refugees' Rights to return, etc., as fex. Turkey does in occupied Cyprus and elsewhere, EU negotiations continue".

    - "I believe that Croatia's accession will confirm that all European Countries who fulfill all of the Conditions and achieve European Standards, have to join the EU. There shouldn't be any Double Standards", went on to add in reply President Mesic.

    In this relation, Croatia's President found "of paramount importance", CoE's "mechanisms enforcing ECHR's judgements"
    
    - "On Refugees and Displaced persons, the process will be completed only after the last person demanding to return will be allowed to do so !", President Mesic Croatia stressed earlier, setting a general standard of obvious importance also for otherr candidates, as f.ex. Turkey, often accused to exclude or heavily restrict Greek Cypriot Displaced persons' return to their Family Homes and ancestral land, provoke difficulties to Turkish-Kurd IDPs return to their home regions at the South-East, etc.

    Some "2.000 People are still reported Missing" in former Yugoslavia, for some Years, (as in Cyprus, modern Europe's oldest case, for 3 Decades. Nagorno-Karabach, Tcecnya in Russia, etc, more recently), and Investigations "will only be completed after establishing the fate of the last one of them", he added.
    
    Speaking earlier on "War Crimes", President Mesic stressed that "Leaders are responsible for (the) Wars (of the Past), not the People", and called against Impunity :  "Individuals have to be held Responsible for Crimes. International Penal Tribunals have to persecute those individuals", perpetrators of War Crimes, he underlined.

    Such statements naturally made Mesic rather popular at ECHR, whose President, French EuroJudge, Professor Jean-Paul Costa, looked particularly smiling when he welcomed him later on Wednesday afternoon, after Slovenian President Daniko Tuerk earlier this week.
           

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