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Home 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?

Parašė ACM
Thursday, January 25, 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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Pierre Pflimlin's visionary line : Honouring the Memory of the man who wanted to build Europe on the Mountains, based on Spirit !

 

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One of EuroFora's best inspirators is naturally Pierre Pflimlin :

We had a chance to personally meet the dynamic and experienced former President of both EU Parliament and CoE's Assembly, France's Prime Minister and Strasbourg's Mayor, only at his 90th anniversary, during an Historic speech at the Council of Europe, exceptionally full of people.

But his energetic figure looked more like a youngster of 19 years old, eager to win the Olympic games !..

Visionary, 2P was, from many points of view :

His daughter, Antoinette, Artist-decorator, and Senator Jung, President of a group of friends, confirmed us an Historian's revelation, that Pflimlin had initially the idea to build all European institutions (EU Parliament, Council of Europe, European Court of Human Rights, etc) at the spectacular heights of Oberhausbergen hills, with an eye-catching view of both French Vosges and German Black Forest Mountains, in the midst of a Forest : A real vision to create a brand New European Headquarters with a big ambition !

But, it seems, that "someone in Brussels" found that picture, precisely, too big for his taste, and threw a spanner on the works...

Pflimlin stroke back a Decade ago, at his Historic 1997 farewell speech :

He urged Europeans to find another, more substantial way, to lift Europe to more important Heights in Future :

- "On which basis can we imagine the birth of a great Europe ?", he asked.

"Certainly an Economic basis ! A solid market economy, meeting also the needs of social justice. A Political basis : Europe must become a strong Political Power, able to influence World's changes, naturally for Peace."

"But I believe that the essential foundation of a greater Europe should be of Spiritual nature : .... The great pacific Revolutions were Spiritual Victories" : They expressed "People's main motivation to live in a society with our Values of Liberty, Democracy, respect for Human Dignity".

"Then, the roadmap is ready : Yes, the foundation of the unity for a large Europe is the spiritual heritage, inspired by Christian Humanism and the Humanism of Renaissance, of Enlightenment, from which emerged a Civilisation focused on the Human person".

"Here is the task to be accomplished. It's very difficult".

"The Time approaches when I'll have to pass over the torchlight. God willing, this torch should enlighten the path of those who are going to build, tomorrow, the great Europe, marked by this Spirit".

 

(Extract from the Book "Pierre Pfilmin : Alsacian and European", 2007. Texts by Senator Louis Jung, by the long-time f. Director of Strasbourg's Newspaper DNA, Alain Howiller, and by f. EU Parliament's Press Director, Paul Collowald : See dedications, hand-written by the authors, the day the book for Pflimlin's 100th Aniversary was launched at Strasbourg's Press Club and European Parliamentary Association's headquarters, 13 April 2007).

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