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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?

Pisac ACM
25. 01. 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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*Paris/ACM/12 October 2008/-

When Europeans really feel a vital need to urgently launch common replies to challenging World Crisis, as the present Financial turmoil of Global Markets, they forge new decision-making tools and new dynamics :

The 1st in History EuroZone Heads of State and Government Summit, organized in Paris at the invitation of French President, and current EU chair, Nicolas Sarkozy, with the participation of 15 national leaders and EU institutions' chairmen, partly enlarged to British Prime Minister Gordon Brown, after a highly symbolic duo with German Chancelor Angie Merkel, at General De Gaulle's birth-village, 50 Years after he welcomed there former German chancellor Adenauer (1958-2008), may have not one, but two results :

- The first, and more urgent, was to launch an "ambitious", "coherent", and "efficient" common European movement, able to stimulate "solutions" to the World Economic Crisis, as Sarkozy anounced from the outset : State Garantees (to new Bank debts up to 5 years), fresh Capital input (f.ex. by buying shares), support to distressed banks, (while also restructuring them), incite the European Central Bank to facilitate commerial bills europe-wide, etc.

"Acting swiftly", from tomorrow, national measures will quantify all these targets, with coordinated actions from all EuroZone's Governments : France, Germany, Italy and others, decided to anounce, at the same time, such concrete measures, according to agreements that we have already made all together, revealed Sarkozy at the final Press Conference, flanked by EuroZone's chairmen : EuroGroup's Jean-Claude Juncker, and Central European Bank's Jean-Claude Truchet, as well as EU Commission's Jose Baroso, to solemnly stress the will to find common European solutions.

- "United and Determined, all EuroZone's Countries will act to prove that Citizens can Trust" the Economy, Sarkozy concluded. If we attract also all EU's 27 countries, Wednesday in Brussels, then we can coordinate action with our American Friends at a Global level, he anounced.

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- "With this new Toolbox, we do not want to serve Bankers, but to work for Europe and its Citizens' interests", added Juncker.

- "For the moment, we want to act urgently to regulate the Crisis. But the time will come when those responsible for this, will have to account for their actions. Yes to real Capitalism, No to Speculators. Those who abused, will face sanctions, Sarkozy warned.


Need stimulates activities which create new organs, say biologists, and Gordon Brown, compatriot of Spencer, the famous bio-Historian, would certainly not deny that, after his surprise visit to EuroZone's Summit in Paris, which attracted him one hour more than scheduled...

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Decisions include also the creation of a Crisis-management European mechanism, which "requires constant Monitoring", as well as strengthening Economic policy cooperation between EuroZone's countries.

Sarkozy will be judged by History not just by the immediate Economic results, expected at the end of this week's decision-making proces at National and EU level, but also by the more far-reaching consequences at the aftermath of this Historic EuroZone 1st Summit : Will it succeed to become a precursor forging a New era in European institution's revitalization ?

Significantly, the French President sat, during discussions, between German Chancelor Merkel, and British Prime Minister Brown, facing the chairmen of EuroGroup, Juncker, ECB : Truchet, and EU Commission, Baroso, with Prime Ministers of Spain, Zapatero (a hot partisan of EuroZone's Summit) at his right side, and Italy's Berlusconi, at his left, surrounded by Austrian, Belgian, Cyprus', Finland's, Greece's, and Ireland's leaders, as well as Slovakia's, Slovenia's, Portugal's, Netherlands', Malta's and Luxembourg's leaders.

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Meanwhile, those who tabled for a rift between French and German positions were faced with a smiling Merkel at De Gaulle-Adenauer's meeting place, a sunny Saturday morning, and a particularly active-looking Merkel inside the French Presidential Palace at Elysee's gardens on Sunday, (as happy few photographers discovered)..

- "De Gaulle's hilltop, at Colombey-les-2-Eglises, gave an astonishing overview to a huge landscape, entirely surrounded by splendid Nature, as far as eyes could see", said to EuroFora an obviously charmed German Journalist.

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She was describing Saturday's inauguration of a High-Tech Memorial close to the Historic Giant Double Lorraine's Cross, built by famous Novelist Andre Malraux, to perpetuate the Memory of his famous call for "Resistance" to NAZI, and his vision for the creation of New Institutions and Franco-German reconciliation, to foster Europe's role in the World, also for the Future.

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Children playing at Elysee's gardens before the Historic 1st EuroZone's Summit : What Europe's Future will look like ?


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