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Pagina principale 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?

Scritto da ACM
Thursday, 25 January 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 Nunes 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, Recently developed a very close Cooperation, President Raimondi stressed earlier Today.

 

 

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Sarkozy and Merkel want deals with Obama on European Security at Strasbourg's NATO 2009 Summit

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In parallel but concording moves, EU Chair, French President Nicolas Sarkozy and German Chancellor Angie Merkel both invited this week US-President elect, Barack Obama, to discuss important deals breaking new ground on European Security during the NATO's 60 Years Anniversary Summit of Heads of State in Strasbourg, where Obama is expected to make his 1st visit to Europe as a President on April 2009.

Merkel focused mainly on smoother NATO - EU Defence and Security policy cooperation, while Sarkozy spoke about PanEuropean Security, associating both Russia and the USA, proposing to freeze missile and shields' deployement until an agreement is reached.

But both tackled some hard nuts to crack : Turkey's VETO against the participation of EU Member Cyprus to EU-NATO cooperation, and Russia's anouncement on deployment of missiles up to Kaliningrad, at EU's belly, in reply to USA's wish to set up missile shields in EU States such as Poland or Czech Republic, etc.


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- "Certainly...one of the points that we'll dicuss with the New US President", Barak OBAMA, "who will come f'or the 1st time in Europe as president, at the NATO Summit", co-hosted by France and Germany in Strasbourg, ""concerns, above all, the European Security and Defence Policy" (ESDP), and "the relations between NATO and its partners", with whom it should "work together", anounced earlier this week Merkel.

We must find "a reasonable and adequate concept to articulate NATO and European Security and Defense policy", because of a "series of practical issues, sometimes difficult to understand", but that "we must discuss".

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- "An example" of that is "the issue of Cyprus and Turkey", said Merkel, where Ankara raises problems "from Kosovo up to Afghanistan", as also CoE's chair, Swedish Foreign Minister Carl Bildt recently observed in Strasbourg replying to EuroFora's questions.

- "We must do something to smoothen this problem for good, and not only on a case-by-case basis, laboriously negotiated each time". Here, we must find "a reasonable and adequate concept to articulate NATO and European Security and Defense policy", Merkel stressed.

- "With good will from all sides, it could and should be posible. Germany wants also to help on that". Otherwise, "the coming generations will not understand why it took Decades to do so". But, if we "don't even achieve that for Decades, this would be an Historic Failure !", the German Chancellor warned

- "I think that our American partners are increasingly realizing that", Merkel said, pleading for "a stronger European Security and Defence policy, with which, I believe, the Atlantic Security Partnership can also strengthen and solidify".

Meanwhile, USA is also due to take in 2009 a special status inside EU-led EUROCORPS, the European Army HeadQuarters, based in Strasbourg.

Merkel said that after meeting in Berlin with NATO's Secretary General, Jaap de Hoop Scheffer, earlier this week, precisely in order to "prepare NATO's Summit", scheduled for the beginning of April 2009 in Strasbourg.

Scheffe, knows well Strasbourg, since he chaired the CoE, as Holland's Foreign Minister, when he brokered a controversial deal precisely on Turkey and Cyprus about the implementation of ECHR judgements on Greek Cypriot displaced persons' houses and properties in 2003. He returned later at least once, for a WEO meeting at the CoE, where he precisely had highlighted such EU - NATO issues.

EU Commission's 2008 Report on Turkey has just observed that, on European Defense - Security policy, "Turkey continues to object to EU-NATO Cooperation which would involve all EU Member States". "This created Problems for EU-NATO co-operation in the context of Civilian ESDP missions, in particular in Kosovo and Afghanistan".
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 French EU Chair, President Sarkozy and Merkel are visiting Washington on Friday and Saturday for a Global G-20 Summit with current US President George Bush, on the sidelines of which are expected preparatory contacts with US President-elect Obama's entourage, even if himself might stay in Chicago until he takes over on January 21.

Before going to Washington, Sarkozy concluded today an UE - Russia Summit with Dmitry Medvedev, where they "spoke in length on PanEuropean Security" :

- As EU President, I proposed that we meet on mid-2009 in a framework such as OSCE's in order to set the foundations of a Future Pan-European Security, which would associate Russia and USA, and that, meanwhile, nobody speaks about deploying missiles or shields, which complicate the situation".

- NATO's Summit in Strasbourg-Kehl, on April 2009 is a perfect occasion to discuss with our American friends and to prepare a possible OSCE Summit for these issues f.ex. for June or July", Sarkozy concluded.

- We must all abstain from Unilateral measures" dangerous for Europe's security. "Russia only reacted to decisions taken by some other countries. But if they are ready to cooperate, we are ready to discuss. EU could be an intermediary", added Russian President Dmitry Medvedev, before going himself too at the Washington G-20 Economic Summit.

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