ReNEUAL 2.0

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The Pan-European General Principles on Judicial Review of Administrative Action

(compiled by Ulrich Stelkens)

I. Judicial Review of Administrative Action as a Pan-European General Principle

II. Notion of Judicial Review of Administrative Action

III. Access to Judicial Review of Administrative Action

IV. Fair Procedure and Judicial Review of Administrative Action

V. Scope of Judicial Review of Administrative Action

VI. Res Iudictata, Effects and Execution of Judicial Decisions in Administrative Matters

VII. Provisional Court Protection in Administrative Matters

I. Judicial Review of Administrative Action as a Pan-European General Principle

The pan-european general principles on judicial review of administrative action only cover the access of private persons to judicial review. Access to judicial review of central government, regional, local or other administrative authorities and bodies falls outside their scope (cf. Article 22 Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration - click here). Whether administrative authorities have access to judicial review of administrative action of other administrative authorities is a question of the law on administrative organisation in general and on local self-government in particular.

1. No general right to an effective remedy before 'an independent and impartial tribunal established by law' in administrative matters under the ECHR

2. Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts 

3. Article 22 Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration

4. Judicial review of administrative action as an element of the CoE's definitions of the rule of law

5. The CoE handbook "The administration and you"

1. No general right to an effective remedy before 'an independent and impartial tribunal established by law' in administrative matters under the ECHR

a) Summaries of the relevant case law on Article 6 and 13 ECHR

b) No general 'rule-of-law'-justification of the ECtHR in the leading cases on the extension of the scope of application of Article 6 (1) ECHR to administrative disputes

c) Judicial review of administrative decisions as an element of the proportionality test of an interference with a right guaranteed by the ECHR

a) Summaries of the relevant case law on Article 6 and 13 ECHR

A summary of the case law of the ECtHR on the scope of the "civil limb" of Article 6 ECHR with regard to judicial review of administrative action is presented in ECtHR (ed.), Guide on Article 6 of the European Convention of Human Rights - Right to a fair trial (civil limb) (version of August 2022) para. 32 ff.

A summary of the case law of the ECtHR on the scope of the "criminal limb" of Article 6 ECHR with regard to judicial review of administrative action is presented in ECtHR (ed.), Guide on Article 6 of the European Convention of Human Rights - Right to a fair trial (criminal limb) (version of August 2022), para. 15 ff.

A summary of the case law of the ECtHR on Article 13 ECHR with regard to judicial review of administrative action (outside the scope of Article 6 ECHR) is presented in ECtHR (ed.), Guide on Article 13 of the European Convention of Human Rights - Right to an effective remedy (version of August 2022)

b) No general 'rule-of-law'-justification of the ECtHR in the leading cases on the extension of the scope of application of Article 6 (1) ECHR to administrative disputes

It is notable that in the leading cases on the extension of the scope of application of Article 6 (1) ECHR to administrative disputes, no arguments beyond "striclty literal interpretation" are put forward to justify this extension:

ECtHR, judgement Ringeisen v. Austria (2614/65) 16 July 1971:

"c) As to the question whether the present complaint involves the determination of civil rights and obligations
94. For Article 6, paragraph (1) (art. 6-1), to be applicable to a case ("contestation") it is not necessary that both parties to the proceedings should be private persons, which is the view of the majority of the Commission and of the Government. The wording of Article 6, paragraph (1) (art. 6-1), is far wider; the French expression "contestations sur (des) droits et obligations de caractère civil" covers all proceedings the result of which is decisive for private rights and obligations. The English text "determination of ... civil rights and obligations", confirms this interpretation.The character of the legislation which governs how the matter is to be determined (civil, commercial, administrative law, etc.) and that of the authority which is invested with jurisdiction in the matter (ordinary court, administrative body, etc.) are therefore of little consequence.
In the present case, when Ringeisen purchased property from the Roth couple, he had a right to have the contract for sale which they had made with him approved if he fulfilled, as he claimed to do, the conditions laid down in the Act. Although it was applying rules of administrative law, the Regional Commission’s decision was to be decisive for the relations in civil law ("de caractère civil") between Ringeisen and the Roth couple. This is enough to make it necessary for the Court to decide whether or not the proceedings in this case complied with the requirements of Article 6, paragraph (1) (art. 6-1), of the Convention."

ECtHR (Plenary), judgement Engel and others v. the Netherlands (5100/71; 5101/71; 5102/71; 5354/72; 5370/72) 8 June 1976:

"80. All the Contracting States make a distinction of long standing, albeit in different forms and degrees, between disciplinary proceedings and criminal proceedings. For the individuals affected, the former usually offer substantial advantages in comparison with the latter, for example as concerns the sentences passed. Disciplinary sentences, in general less severe, do not appear in the person's criminal record and entail more limited consequences. It may nevertheless be otherwise; moreover, criminal proceedings are ordinarily accompanied by fuller guarantees.
It must thus be asked whether or not the solution adopted in this connection at the national level is decisive from the standpoint of the Convention. Does Article 6 (art. 6) cease to be applicable just because the competent organs of a Contracting State classify as disciplinary an act or omission and the proceedings it takes against the author, or does it, on the contrary, apply in certain cases notwithstanding this classification? This problem, the importance of which the Government acknowledge, was rightly raised by the Commission; it particularly occurs when an act or omission is treated by the domestic law of the respondent State as a mixed offence, that is both criminal and disciplinary, and where there thus exists a possibility of opting between, or even cumulating, criminal proceedings and disciplinary proceedings.
81. The Court has devoted attention to the respective submissions of the applicants, the Government and the Commission concerning what they termed the "autonomy" of the concept of a "criminal charge", but does not entirely subscribe to any of these submissions [...].
The question of the "autonomy" of the concept of "criminal" does not call for exactly the same reply.
The Convention without any doubt allows the States, in the performance of their function as guardians of the public interest, to maintain or establish a distinction between criminal law and disciplinary law, and to draw the dividing line, but only subject to certain conditions. The Convention leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects. This is made especially clear by Article 7 (art. 7). Such a choice, which has the effect of rendering applicable Articles 6 and 7 (art. 6, art. 7), in principle escapes supervision by the Court.
The converse choice, for its part, is subject to stricter rules. If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a "mixed" offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 (art. 6, art. 7) would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the purpose and object of the Convention. The Court therefore has jurisdiction, under Article 6 (art. 6) and even without reference to Articles 17 and 18 (art. 17, art. 18), to satisfy itself that the disciplinary does not improperly encroach upon the criminal.
In short, the "autonomy" of the concept of "criminal" operates, as it were, one way only.
82. Hence, the Court must specify, limiting itself to the sphere of military service, how it will determine whether a given "charge" vested by the State in question - as in the present case - with a disciplinary character nonetheless counts as "criminal" within the meaning of Article 6 (art. 6).
In this connection, it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States.
The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in principle employ against him disciplinary law rather than criminal law. In this respect, the Court expresses its agreement with the Government.
However, supervision by the Court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the "criminal" sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so [...].
83. It is on the basis of these criteria that the Court will ascertain whether some or all of the applicants were the subject of a "criminal charge" within the meaning of Article 6 para. 1 (art. 6-1). [...]." 

ECtHR (Plenary), judgement König v. Germany (6232/73) 28 June 1978:

"87. The Court notes at the outset that, as is not contested, under the legislation of the State concerned the actions brought by the applicant before the German courts concern "rights". The difference of view between Commission and Government relates only to the question whether the present case involves disputes ("contestations") over civil rights within the meaning of Article 6 para. 1 (art. 6-1) of the Convention.
88. Both the Commission and the Government agree that the concept of "civil rights and obligations" cannot be interpreted solely by reference to the domestic law of the respondent State. [...].
89. Whilst the Court thus concludes that the concept of "civil rights and obligations" is autonomous, it nevertheless does not consider that, in this context, the legislation of the State concerned is without importance. Whether or not a right is to be regarded as civil within the meaning of this expression in the Convention must be determined by reference to the substantive content and effects of the right - and not its legal classification - under the domestic law of the State concerned. In the exercise of its supervisory functions, the Court must also take account of the object and purpose of the Convention and of the national legal systems of the other Contracting States (see, mutatis mutandis, the above-mentioned Engel and others judgment, p. 35, para. 82).
90. The Government submit that Article 6 para. 1 (art. 6-1) covers private-law disputes in the traditional sense, that is disputes between individuals or between an individual and the State to the extent that the latter had been acting as a private person, subject to private law; amongst other things, disputes between an individual and the State acting in its sovereign capacity would be excluded from the ambit of that Article (art. 6-1).
As regards the field of application of Article 6 para. 1 (art. 6-1), the Court held in its Ringeisen judgment of 16 July 1971 that "for Article 6 para. 1 (art. 6-1) to be applicable to a case ('contestation') it is not necessary that both parties to the proceedings should be private persons .... The wording of Article 6 para. 1 (art. 6-1) is far wider; the French expression 'contestations sur (des) droits et obligations de caractère civil' covers all proceedings the result of which is decisive for private rights and obligations. The English text, 'determination of ... civil rights and obligations', confirms this interpretation. The character of the legislation which governs how the matter is to be determined ... and that of the authority which is invested with jurisdiction in the matter ... are therefore of little consequence" (Series A no. 13, p. 39, para. 94).
If the case concerns a dispute between an individual and a public authority, whether the latter had acted as a private person or in its sovereign capacity is therefore not conclusive.
Accordingly, in ascertaining whether a case ("contestation") concerns the determination of a civil right, only the character of the right at issue is relevant.
91. [...]. Therefore, it remains to be ascertained whether Dr. König's right to continue to run a private clinic and his right to continue to exercise the medical profession are civil rights within the meaning of Article 6 para. 1 (art. 6-1)." [...].
94. In these conditions, it is of little consequence that here the cases concern administrative measures taken by the competent bodies in the exercise of public authority. Neither does it appear pertinent that, under the law of the State concerned, it is for administrative courts to give the decision on these cases and to do so in proceedings which leave to the court the responsibility for the investigation and for the conduct of the trial. All that is relevant under Article 6 para. 1 (art. 6-1) of the Convention is the fact that the object of the cases in question is the determination of rights of a private nature.
95. Since it thus considers the rights affected by the withdrawal decisions and forming the object of the cases before the administrative courts to be private rights, the Court concludes that Article 6 para. 1 (art. 6-1) is applicable, without it being necessary in the present case to decide whether the concept of "civil rights and obligations" within the meaning of that provision extends beyond those rights which have a private nature."

However, in a case were judicial review over administrative action was explictely excluded the ECtHR clearly considered judicial review over administrative action as an element of the rule of law: ECtHR [Plenary], judgement Klass and Others v. Germany (5029/71) 6 September 1978:

"54. The Government maintain that Article 8 para. 2 (art. 8-2) does not require judicial control of secret surveillance and that the system of review established under the G 10 does effectively protect the rights of the individual. The applicants, on the other hand, qualify this system as a "form of political control", inadequate in comparison with the principle of judicial control which ought to prevail.
It therefore has to be determined whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the "interference" resulting from the contested legislation to what is "necessary in a democratic society".
55. Review of surveillance may intervene at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual’s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding the individual’s rights. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 para. 2 (art. 8-2), are not to be exceeded. One of the fundamental principles of a democratic society is the rule of law, which is expressly referred to in the Preamble to the Convention [...]. The rule of law implies, inter alia, that an interference by the executive authorities with an individual’s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure.
56. Within the system of surveillance established by the G 10, judicial control was excluded, being replaced by an initial control effected by an official qualified for judicial office and by the control provided by the Parliamentary Board and the G 10 Commission.
The Court considers that, in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge.
Nevertheless, having regard to the nature of the supervisory and other safeguards provided for by the G 10, the Court concludes that the exclusion of judicial control does not exceed the limits of what may be deemed necessary in a democratic society. The Parliamentary Board and the G 10 Commission are independent of the authorities carrying out the surveillance, and are vested with sufficient powers and competence to exercise an effective and continuous control. Furthermore, the democratic character is reflected in the balanced membership of the Parliamentary Board. The opposition is represented on this body and is therefore able to participate in the control of the measures ordered by the competent Minister who is responsible to the Bundestag. The two supervisory bodies may, in the circumstances of the case, be regarded as enjoying sufficient independence to give an objective ruling.
The Court notes in addition that an individual believing himself to be under surveillance has the opportunity of complaining to the G 10 Commission and of having recourse to the Constitutional Court [..].. However, as the Government conceded, these are remedies which can come into play only in exceptional circumstances.
57 - 58. [...].
59. [...]. The Court agrees with the Commission that some compromise between the requirements for defending democratic society and individual rights is inherent in the system of the Convention [...]. As the Preamble to the Convention states, "Fundamental Freedoms ... are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which (the Contracting States) depend". In the context of Article 8 (art. 8), this means that a balance must be sought between the exercise by the individual of the right guaranteed to him under paragraph 1 (art. 8-1) and the necessity under paragraph 2 (art. 8-2) to impose secret surveillance for the protection of the democratic society as a whole.
60. In the light of these considerations and of the detailed examination of the contested legislation, the Court concludes that the German legislature was justified to consider the interference resulting from that legislation with the exercise of the right guaranteed by Article 8 para. 1 (art. 8-1) as being necessary in a democratic society in the interests of national security and for the prevention of disorder or crime (Article 8 para. 2) (art. 8-2). Accordingly, the Court finds no breach of Article 8 (art. 8) of the Convention."

c) Judicial review of administrative decisions as an element of the proportionality test of an interference with a right guaranteed by the ECHR

ECtHR (GC), judgement M. A. v. Denmark (6697/18) 9 July 2018 (with regard to Article 8 ECHR):

"148. Where the legislature enjoys a margin of appreciation, the latter in principle extends both to its decision to intervene in a given subject area and, once having intervened, to the detailed rules it lays down in order to ensure that the legislation is Convention compliant and achieves a balance between any competing public and private interests. However, the Court has repeatedly held that the choices made by the legislature are not beyond its scrutiny and has assessed the quality of the parliamentary and judicial review of the necessity of a particular measure. It has considered it relevant to take into account the risk of abuse if a general measure were to be relaxed, that being a risk which is primarily for the State to assess. A general measure has also been found to be a more feasible means of achieving the legitimate aim than a provision allowing a case-by-case examination, when the latter would give rise to a risk of significant uncertainty, of litigation, expense and delay as well as of discrimination and arbitrariness. The application of the general measure to the facts of the case remains, however, illustrative of its impact in practice and is thus material to its proportionality (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013, with further references). [...].
149. In this respect the Court also recalls that the domestic courts must put forward specific reasons in the light of the circumstances of the case, not least to enable the Court to carry out the European supervision entrusted to it. Where the reasoning of domestic decisions is insufficient, with any real balancing of the interests in issue being absent, this would be contrary to the requirements of Article 8 of the Convention (see, for instance, I.M. v. Switzerland, no. 23887/16, § 72, 9 April 2019). Where, on the other hand, the domestic courts have carefully examined the facts, applied the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the individual interests against the public interest in a case, the Court would require strong reasons to substitute its view for that of the domestic courts [...]."

ECtHR (GC), judgement Karácsony and Others v. Hungary (42461/13 and 44357/13) 17 May 2016 (with regard to Article 10 ECHR):

"(β) On procedural guarantees of freedom of expression
133. Apart from the above factors, the fairness of proceedings and the procedural guarantees afforded are factors which in some circumstances may have to be taken into account when assessing the proportionality of an interference with freedom of expression (see Association Ekin v. France, no. 39288/98, § 61, ECHR 2001‑VIII; Steel and Morris v. the United Kingdom, no. 68416/01, § 95, ECHR‑2005 II; Kyprianou v. Cyprus [GC], no. 73797/01, §§ 171 and 181, ECHR‑2005 XIII; Saygılı and Seyman v. Turkey, no. 51041/99, §§ 24-25, 27 June 2006; Kudeshkina v. Russia, no. 29492/05, § 83, 26 February 2009; Lombardi Vallauri v. Italy, no. 39128/05, § 46, 20 October 2009; Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 100, 14 September 2010; Cumhuriyet Vakfı and Others v. Turkey, no. 28255/07, § 59, 8 October 2013; and Morice v. France [GC], no. 29369/10, § 155, ECHR 2015).
134. In Association Ekin, which concerned an administrative ban on the distribution and sale of a book of "foreign origin", the Court held that a legal framework should ensure, inter alia, effective judicial review of such bans to prevent any abuse of power (cited above, § 58). The Court noted that the administrative courts carried out only a limited review of the reasons for such bans. In the applicant association’s case the Conseil d’Etat carried out a full review, but its practical effectiveness was undermined by the excessive length of the proceedings. The Court considered that such a deficient judicial review provided insufficient guarantees against abuse (ibid., § 61).
135. In Lombardi Vallauri, in which the applicant’s candidacy for a teaching post in a denominational university was refused on account of his alleged heterodox views, the Court noted that in the proceedings before the Faculty Board the applicant had not been provided with adequate procedural guarantees (cited above, §§ 46-48). In the judicial-review proceedings, the administrative courts had limited their examination of the impugned decision to the fact that the Faculty Board had noted the existence of the Congregation’s refusal to approve the applicant’s candidacy. The fact that the applicant had not been given the exact reasons for that refusal ruled out any possibility of adversarial debate. Accordingly, the Court found that the judicial review had not been adequate (ibid., §§ 51 and 54).
136. In Cumhuriyet Vakfı and Others, which concerned an injunction against a national newspaper issued in the course of civil proceedings for protection of personality rights, the Court found that the applicants had not been afforded sufficient safeguards (cited above, § 75). It had regard to (i) the exceptionally wide scope of the injunction, (ii) its excessive duration, (iii) the failure of the domestic court to give any reasoning for the interim injunction and (iv) the applicants’ inability to contest the measure before its being granted (ibid., §§ 62-74)."

ECtHR (GC), judgement G.I.E.M. S.R.L and Others v. Italy (42461/13 and 44357/13) 28 June 2018 (with regard to Article 1 of Protocol No. 1);

"301. The following factors may be taken into account in order to assess whether the confiscation was proportionate: the possibility of less restrictive alternative measures such as the demolition of structures that were incompatible with the relevant regulations or the annulment of the development plan; the unlimited nature of the sanction, as it affected both developed and undeveloped land, and even areas belonging to third parties; and the degree of culpability or negligence on the part of the applicants or, at the very least, the relationship between their conduct and the offence in question.
302. In addition, the importance of the procedural obligations under Article 1 of Protocol No. 1 must not be overlooked. Thus the Court has, on many occasions, noted that, although Article 1 of Protocol No. 1 contains no explicit procedural requirements, judicial proceedings concerning the right to the peaceful enjoyment of one’s possessions must also afford the individual a reasonable opportunity of putting his or her case to the competent authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 96, ECHR 2002‑VII; Capital Bank AD v. Bulgaria, no. 49429/99, § 134, ECHR 2005‑XII; Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007-I; J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 57, ECHR 2007-III; Zafranas v. Greece, no. 4056/08, § 36, 4 October 2011; and Giavi v. Greece, no. 25816/09, § 44, 3 October 2013; see also, mutatis mutandis, Al‑Nashif v. Bulgaria, no. 50963/99, § 123, 20 June 2002, and Grande Stevens and Others, cited above, § 188). An interference with the rights provided for by Article 1 of Protocol No. 1 cannot therefore have any legitimacy in the absence of adversarial proceedings that comply with the principle of equality of arms, allowing discussion of aspects that are important for the outcome of the case. In order to ensure that this condition is satisfied, the applicable procedures should be considered from a general standpoint (see, among other authorities, AGOSI, cited above, § 55; Hentrich v. France, § 49, 22 September 1994, Series A no. 296‑A; Jokela v. Finland, no. 28856/95, § 45, ECHR 2002‑IV; Gáll v. Hungary, no. 49570/11, § 63, 25 June 2013; and Sociedad Anónima del Ucieza v. Spain, no. 38963/08, § 74, 4 November 2014)"

2. Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts 

Click here for information on the genesis of Recommendation Rec(2004)20

Preambule of Recommendation Rec(2004)20:

"The Committee of Ministers [...]
Recalling Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms which provides that "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law" and the relevant case-law on administrative disputes of the European Court of Human Rights;
Considering that effective judicial review of administrative acts to protect the rights and interests of individuals is an essential element of the system of protection of human rights;
Having in mind that a balance should be struck between the legitimate interests of all parties with a view to providing for the procedure without delay and for efficient and effective public administration;
Taking into account the results of the monitoring of member states’ observance of their commitments on the subject of "functioning of the judicial system" and of the decision taken by the Ministers’ Deputies at their 693rd meeting on 12 January 2000 on the possibility and scope of judicial review of administrative decisions;
In the light of the conclusions of the First Conference of the Presidents of Supreme Administrative Courts in Europe, which had as its theme "The possibility and scope of the judicial control of administrative decisions in member states", which took place in Strasbourg on 7 and 8 October 2002;
Taking into account the legal instruments of the Council of Europe in the field of administrative law, and in particular Resolution (77) 31 on the protection of the individual in relation to the acts of administrative authorities;
Bearing in mind Recommendation No. R (94) 12 on the independence, efficiency and role of judges;
Recalling Recommendation Rec(2003)16 on execution of administrative and judicial decisions in the field of administrative law;
Seeking to strengthen the rule of law and human rights, which are fundamental values of the legal systems of Council of Europe member states;
Seeking to ensure effective access to judicial review of administrative acts;
Convinced that other methods of control of administrative acts, which may include internal appeal to the administrative authorities and control by the ombudsman institution as well as appeal to alternatives to litigation, set out in Recommendation Rec(2001)9 on alternatives to litigation between administrative authorities and private parties, are useful for improving the functioning of jurisdictions and for the effective protection of everyone’s rights,
Recommends that the governments of member states apply, in their national legal system and in practice, the principles set out below:"

Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2004)214 of 19 November 2004):

"I. Introduction
1. The rule of law is inconceivable without access for all citizens to an independent, impartial tribunal established by law and capable of meeting the requirements of a fair trial. This is particularly important where the possibility of challenging administrative acts is concerned because such measures or decisions are taken in the exercise of public authority and often directly affect the rights and freedoms secured under the European Convention on Human Rights (hereafter ECHR). Given the specific nature of administrative acts, the member States of the Council of Europe should ensure that their judicial organisation and control procedures are in line with the requirements of the ECHR in order to guarantee the effectiveness of the control of administrative acts.
2. Nevertheless, at a time when the expansion of the public sector in the member States and the effects of such expansion on people’s lives are highlighting the need for special new arrangements, the States remain free to define the framework and procedure for supervising administrative acts. However, given that the lack of a judicial remedy against administrative acts might be interpreted as a denial of justice, member States are required to guarantee the reality and efficacy of the control of such acts while not encroaching on the independence of the judge or of the competent court or tribunal.
3. For these reasons, and in the light of the results of the procedure for monitoring the honouring of commitments entered into by member States on the theme of "functioning of the judicial system", which showed that some member States had structural problems linked to the absence of judicial review of administrative acts, the Committee of Ministers, on a motion from the European Committee on Legal Co-operation (CDCJ), entrusted the Project Group on Administrative Law (CJ-DA) with the task of formulating an appropriate instrument on the judicial review of administrative acts.
4. On 7 and 8 October 2002, the Council of Europe organised a Conference of Presidents of Supreme Administrative Courts in Europe in order to secure a preliminary assessment of the problems arising out of the judicial control of the Administration. At the close of this Conference the participants adopted conclusions in which they proclaimed their support for the work assigned to the CJ-DA by the Committee of Ministers and came down in favour of continuing to study the issue of judicial review of administrative acts.
5. This Conference debated the optimum ways and means of ensuring effective control of administrative acts in the light of the case-law of the European Court of Human Rights (hereafter European Court). It recalled that the ECHR had not originally been intended to apply to administrative proceedings, but that the European Court’s case-law had partly remedied this situation. The CJ-DA took account of the proceedings of the conference during its discussions on the content of the present Recommendation, and the explanatory memorandum is largely based on them."

Principle 1 of Part B of Recommendation Rec(2004)20: 

"The scope of judicial review:
a. All administrative acts should be subject to judicial review. Such review may be direct or by way of exception.
b. The tribunal should be able to review any violation of the law, including lack of competence, procedural impropriety and abuse of power."

Following the definitions set out in Part A of Recommendation Rec(2004)20: 

• "administrative acts" means (a) legal acts – both individual and normative – and physical acts of the administration taken in the exercise of public authority which may affect the rights or interests of natural or legal persons, (b) situations of refusal to act or an omission to do so in cases where the administrative authority is under an obligation to implement a procedure following a request.
• "judicial review" means the examination and determination by a tribunal of the lawfulness of an administrative act and the adoption of appropriate measures, with the exception of review by a constitutional court.

Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2004)214 of 19 November 2004):

"II. General Considerations
6. The Recommendation on the judicial review of administrative acts is aimed at establishing the principles governing judicial review of administrative acts in a State governed by the Rule of Law. It should be noted that in all States governed by the rule of law the Administration is subject to the law and supervision by the courts on the same basis as any individual and any citizen, in accordance with the principle of the pre-eminence of law. The Recommendation strives to present pointers for the desirable future development of administrative justice, while taking account of the disparities between administrative and judicial systems in the various member States. It attempts to avoid any traditional conception of judicial review of administrative acts, i.e. acts adopted by the authorities having consequences for the rights and interests of citizens. Its main aim is to ensure effective access to judicial review, thus helping to consolidate the rule of law and human rights in Europe.
7. The Recommendation draws on the principle that all administrative acts must be subject to judicial review. This requirement would in this way also be respected with regard to the acts and procedures which are not covered by the relevant provisions of the ECHR, in particular Article 6.1. As was emphasised by the Conference of Presidents of Supreme Administrative Courts in connection with the lawfulness of administrative acts, this obligation results from both their nature and their effects. By nature they are a prime means of action for the Administration on behalf of the public authorities, and members of the community are required to execute and implement them. On the other hand, the principles of democracy require the addressees of the acts to be able to enlist the services of a judge to verify their lawfulness, in formal and substantive terms. In terms of their effects, these acts may violate the rights and freedoms secured under national legislation and various international instruments. For instance, Article 13 of the ECHR states that "everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity [...]-
[...] Judicial Review
18. The concept of judicial review covers different ideas in different countries. As mentioned at the Conference of Presidents of Supreme Administrative Courts, experience shows that the rule of law and the subjection of the public authority to law and the courts are not self-evident, and that there is a constant temptation to exempt administrative acts from legal rules and control by the courts. It is therefore vital to ensure that administrative acts can be controlled and set aside - or rebutted by exceptional remedy - if they prove unlawful.
19. The Recommendation is aimed at guaranteeing the right of everyone, in accordance with the ECHR, to a fair hearing by an independent and impartial tribunal also in administrative cases. This principle of a fundamental right to a tribunal is inherent in the rule of law, and it is imperative for the States having ratified the ECHR to respect it. Both the Statute of the Council of Europe and the Preamble to the ECHR stress the rule of law and genuine democracy. These two principles therefore involve judicial review of administrative acts, if only in order to mitigate the inequality of arms between the administration and the citizen.
20. The concept of judicial review adopted in this recommendation is broader than that consisting in merely examining the lawfulness of an act; it also encompasses the tribunal's power to annul an act following its review or to award compensation. The administrative court's role is to protect individuals by means of the law.
21. Therefore, the tribunal must be empowered to instigate proceedings to verify the lawfulness of administrative acts, including administrative silence or failure to act, and to draw the requisite conclusions from its findings.
22. The concept of lawfulness of an administrative act is broadly construed: it concerns infringements of interests which, by law, are worthy of protection. Infringing a protected interest accordingly amounts to breaking the law.
23. Judicial review is an objective activity which can be initiated at the request of an individual or of another body, particularly a public body. One of the functions of judicial review is the protection of the individual vis-à-vis the administration. However, such control is also geared to safeguarding and clarifying the administration’s powers.
24. The subjects of judicial review comprise all the types of administrative act covered by the definition of such acts."

3. Article 22 Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration

Article 22 - Appeals against administrative decisions: (1) Private persons shall be entitled to seek, directly or by way of exception, a judicial review of an administrative decision which directly affects their rights and interests.
(2) Administrative appeals, prior to a judicial review, shall, in principle, be possible. They may, in certain cases, be compulsory. They may concern an appeal on merits or an appeal on the legality of an administrative decision.
(3) Private persons shall not suffer any prejudice from public authorities for appealing against an administrative decision.

"Private persons" are defined in Article 1 (3) of Recommendation CM/Rec(2007)7 as "individuals and legal persons under private law who are the subject of activities by public authorities" - see on the discussion of Article 20 the meeting report on the 4th meeting (10-12 July 2006) of the Working Party of the Project Group on Administrative Law (CJ-DA-GT (2006) 3), para. 43 ff.; for the genesis of Recommendation CM/Rec(2007)7 in general click here

4. Judicial review of administrative action as an element of the CoE's definitions of the rule of law

1. ECtHR (GC), judgement Kress v. France (39594/98) 7 June 2001

"69. The Court accepts that, in comparison with the ordinary courts, the administrative courts in France display a number of special features, for historical reasons.
Admittedly, the very establishment and existence of administrative courts can be hailed as one of the most conspicuous achievements of a State based on the rule of law, in particular because the jurisdiction of those courts to adjudicate on acts of the administrative authorities was not accepted without a struggle. Even today, the way in which administrative judges are recruited, their special status, distinct from that of the ordinary judiciary, and the special features of the way in which the system of administrative justice works (see paragraphs 33-52 above) show how difficult it was for the executive to accept that its acts should be subject to review by the courts. [...]"

2. The Council of Europe and rule of law – an overview (CM(2008)170) 21. November 2008 (Report of the Secretary General of the CoE at the request of the Minister's Deputies Rapporteur Group on Legal Cooperation (GR-J)

"A. The institutional framework and organisation of the state
[...].
38. The notion of separation of powers, notably between the political organs of the state (executive, legislature) and the judiciary has assumed a growing importance in the Court’s case-law. While the Court has refrained from elaborating a general theory on separation of powers or on checks and balances between the legislature, the executive and the judiciary, it is careful to protect the judicial process from interferences by the legislature or the executive [...].
39. [...].
42. The duty of the state, notably the executive, to respect and apply the law, including the duty to enforce final domestic judgments, will be further addressed under the principle of legality below. Here, reference should be made to the importance of administrative courts which the Court has highlighted as one of the most conspicuous achievements of a state based on the rule of law, in particular because the jurisdiction of those courts to adjudicate on acts of the administrative authorities was not accepted without a struggle (Kress, 7.1. 2001, § 69)."

For the genesis of this report click here

3. Venice Commission, Report on the Rule of Law (CDL-AD(2011)003rev9) of 4 April 2011

"(4) Access to Justice before independent and impartial courts
53. Everyone should be able to challenge governmental actions and decisions adverse to their rights or interests. Prohibitions of such challenge violate the rule of law. Normally these challenges should be made to courts of law, but some countries allow alternative challenge to more informal tribunals, from which appeal may lie to a court."

4. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016

"A. Legality¹⁶
1. Supremacy of the Law
Is supremacy of the law recognised?
i. [...].
vi. Is effective judicial review of the conformity of the acts and decisions of the executive branch of government with the law available?
vii. Does such judicial review also apply to the acts and decisions of independent agencies and private actors performing public tasks?
viii. [...].

44. State action must be in accordance with and authorised by the law. Whereas the necessity for judicial review of the acts and decisions of the executive and other bodies performing public tasks is universally recognised, national practice is very diverse on how to ensure conformity of legislation with the Constitution. While judicial review is an effective means to reach this goal, there may also be other means to guarantee the proper implementation of the Constitution to ensure respect for the Rule of Law, such as a priori review by a specialised committee.¹⁸"

Footnote 16: "The principle of legality is explicitly recognised as an aspect of the Rule of Law by the European Court of Justice, see ECJ, C-496/99 P, Commission v. CAS Succhi di Frutta, 29 pril 2004, § 63."
Footnote 18: "The Venice Commission is in principle favourable to full review of constitutionality, but a proper implementation of the Constitution is sufficient: cf. CDL-AD(2008)010, Opinion on the Constitution of Finland, § 115ff. See especially the section on Constitutional Justice (II.E.3)."

 "E. Access to justice [...]
2. Fair Trial [...]
a. Access to courts

Do individuals have an effective access to courts?
i. Locus standi (right to bring an action): Does an individual have an easily accessible and effective opportunity to challenge a private or public act that interferes with his/her rights?¹⁰⁷
ii. Is the right to defence guaranteed, including through effective legal assistance? ¹⁰⁸ If yes, what is the legal source of this guarantee?
iii. Is legal aid accessible to parties who do not have sufficient means to pay for legal assistance, when the interests of justice so require? ¹⁰⁹
iv. Are formal requirements,¹¹⁰ time-limits¹¹¹ and court fees reasonable? ¹¹²
v. Is access to justice easy in practice? ¹¹³ What measures are taken to make it easy?
vi. Is suitable information on the functioning of the judiciary available to the public?"

Footnote 107: "The degree of access afforded by the national legislation must also be sufficient to secure the individual’s "right to a court", having regard to the principle of the Rule of Law in a democratic society. For the right of access to be effective, an individual must have a clear, practical opportunity to challenge an act that is an interference with his rights", ECtHR Bellet v. France, 23805/94, 4 December 1995, § 36; cf. ECtHR M.D. and Others v. Malta, 64791/10, 17 July 2012, § 53."

5. The CoE handbook "The administration and you"

CoE (ed.), The administration and you (1st edition 1996/1997), pp. 37 f.:

"66. There are three types of control which may produce an effective remedy against administrative acts taken in violation of the substantive and procedural principles set out above in Chapters 2, 3 and 4. The first type, judicial review, is an essential element of a state governed by the rule of law and the respect of human rights.
[...].
69. Administrative acts, and failures to take such an act, are subject to judicial review at least as regards their legality :
(i) before an independent and impartial tribunal established by law ;
(ii) involving a fair procedure the length of which is reasonable ;
(iii) including a fair and public hearing ;
(iv) affording an effective remedy."

CoE (ed.), The administration and you (2nd edition 2018), pp. 50 f.:

"The right of access to justice and the right to a fair hearing are essential features of any democratic society. The rule of law seeks to ensure that any interference by public authorities with the rights of individuals should be subject to effective control, normally ensured by the courts. Judicial review offers the best guarantees of independence, impartiality and a proper procedure. [...]
The right to appeal applies to administrative decisions taken by any public authority, regardless of the subject matter. There are, however, some restrictions concerning the application of Article 6 of the European Convention on Human Rights, as it is limited to the determination of "civil rights and obligations". While the European Court of Human Rights has, since its judgment in Ringeisen v. Austria, progressively extended what is covered by this concept for the purposes of Article 6 in the context of disputes between individuals and public authorities, there are disputes that fall outside Article 6 of the Convention.
In broad terms, Article 6 of the Convention will apply to public law proceedings that are "decisive" when determining an individual’s rights and obligations, whether they are of a pecuniary or private nature (for example, use of land, building permits, licences to run a business, disciplinary proceedings), involve social rights (for example, contributory and non-contributory social security benefits) or concern individual rights of a personal nature (for example, right to life, to health or to a healthy environment; the fostering of children; schooling arrangements; restrictions on prisoners’ rights; membership or registration of an association; access to administrative documents).
Public officials in dispute with their employer will also enjoy the fair trial guarantees of Article 6 of the Convention, unless they are expressly excluded by national legislation from access to court and the public official either participates in the exercise of public power or there exists a "special bond of trust and loyalty" between the public official and the state as his or her employer (Vilho Eskelinen and Others v. Finland). Disputes relating to public authority prerogatives, such as taxation, immigration policy, civil service employment (if it falls within the test mentioned previously) and political and electoral rights will fall outside Article 6."

II. Notion of Judicial Review of Administrative Action

1. Functional Definition of "Administrative Courts"

2. Disputes in "administrative matters" as a subject of judicial review

3. Notion of "judicial review" - requirements for the independence and impartiality of courts and tribunals

1. Functional Definition of "Administrative Courts"

"Administrative courts" are all courts having to decide on administrative matters (with the exception of constitutional courts, cf. infra II 2), independently whether they are (specialized) administrative courts or part of the ordinary court system. Thus, even if specialized administrative courts exist in a given state, ordinary courts deciding on administrative matters (for whatever reason) are considered as "administrative courts" within the meaning of the pan-European general principles on judicial review of administrative action.

See 'Part B Principle 3 of Recommendation Rec(2004)20:

"An independent and impartial tribunal
a) Judicial review should be conducted by a tribunal established by law whose independence and impartiality are guaranteed [...].
b) The tribunal may be an administrative tribunal or part of the ordinary court system"

Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2004)214 of 19 November 2004):

"55. [Principle 3.b. supplements principle 3.a; it specifies the characteristics of the body responsible for judicial review of administrative acts: it refers to both administrative tribunals and ordinary courts dealing with administrative proceedings, both categories of court having the same status. Each state will choose one or the other type of court to deal with administrative proceedings depending on its own system of organisation of the courts.
56. Both administrative tribunals and ordinary courts must satisfy the requirements of principle 3.a."

CoE (ed.), The administration and you (2nd edition 2018), p. 51 (similiary, 1st edition 1996/1997, para 69.6. (p. 38 f.)):

"The constitutional traditions and legal systems of different states offer various solutions as to the nature of tribunals which can review administrative decisions. Under the civil law tradition, these are essentially administrative courts, the jurisdiction of which is confined to matters of administrative law and which have no jurisdiction concerning private litigation. In common law countries, the control of administrative acts is arried out in the ordinary courts by judges whose jurisdiction covers both public and private law matters. However, both traditions admit specialised tribunals established by law which are not part of the general system of administrative courts or of the system of ordinary courts, and which have a jurisdiction specifically limited to particular subjects such as social welfare, licensing, patents and statutory compensation for administrative decisions (such as expropriation). If the composition or functioning of such tribunals does not fulfil the requirements set out in Article 6 of the European Convention on Human Rights, their decisions must be subject to appeal before courts which do offer such guarantees."

2. Disputes in "administrative matters" as a subject of judicial review

a) Approach of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts: Administration acts as public authority

b) Judicial review of administrative action and private acts of the administration

c) Judicial review of administrative action, constitutional review and 'actes de gouvernement'

a) Approach of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts: Administration acts as public authority

Principle 1 a. of Part B of Recommendation Rec(2004)20:

"All administrative acts should be subject to judicial review. Such review may be direct or by way of exception."

Cf. the definition set out in Part A (2) of Recommendation Rec(2004)20:

"By 'administrative acts ' are meant (a) legal acts – both individual and normative – and physical acts of the administration taken in the exercise of public authority which may affect the rights or interests of natural or legal persons, (b) situations of refusal to act or an omission to do so in cases where the administrative authority is under an obligation to implement a procedure following a request."

Even if the wording of Recommendation Rec(2004)20 alludes to the 'classic' situation where a court is seized to quash an administrative act (which may become 'unappealable' if not challenged in court in time [click here]) the concept of 'judicial review of administrative acts' in this recommendation is sufficiently broad to cover all 'administrative law disputes' (at least those between private persons and the administration) including disputes in competitive award procedures, contractual disputes, public liability claims, etc.

Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2004)214 of 19 November 2004):

"12. The administrative acts covered by the Recommendation are broadly defined in order to ensure judicial review of all administrative activities by the Administration. The definition of administrative acts does not include acts having a purely private law character and acts or proceedings of the Parliament in its legislative function. While the concept of administrative decision (acte administratif) has very specific connotations in some legal systems, the concept of administrative act (acte de l’administration) covers a wider area of activities conducted by administrations.
13. The Recommendation does not prevent States from defining very limited exceptions established by law, for example certain acts in the field of foreign affairs, international agreements, defence or national security.
14. The definition of administrative act adopted by the Recommendation embraces several possible actions by the public administration. It comprises individual administrative acts constituting decisions taken by the Administration in respect of specific individuals. It also covers prescriptive acts and statutory acts accompanied by general, non-personal regulations addressed to an unspecified number of persons. It further includes material actions which will have consequences in terms of the legal regulations governing natural or legal persons, on the understanding that changes to the legal situation entail creating both rights and obligations.
15. Lastly, the definition also covers situations of refusal or failure to act on the part of the public administration in cases where there is an obligation for the administrative authority to act. The Recommendation considers that the concept of administrative act also covers cases where the Administration fails to respond to a request or where it explicitly or implicitly refuses to adopt a given decision or act. The tribunal should be empowered to act in both these situations.
16. Under no circumstances may a citizen's interests be harmed by the administration's remaining silent. After a certain time prescribed by law, this silence should open access to a tribunal. In such cases the administrative authority will be required to explain to the tribunal, at the applicant’s request or at the request of the tribunal, its reasons for refusing the applicant's request. If the authority fails to give grounds, the tribunal shall hold its act to be unlawful.
17. The Recommendation applies only to such administrative acts as have been implemented by the Administration in the exercise of public authority. Such authority allows the Administration to impose obligations, issue acts and confer rights. These acts have the effect of changing the legal and factualsituation of the persons concerned, depending on the scope of the act. The Recommendation specifically targets administrative acts which infringe the rights or interests of natural or legal persons. Private acts lie outside the ambit of the text."

Click here for information on the genesis of Recommendation Rec(2004)20

Cf. CoE (ed.), The administration and you (1st edition 1996/1997), para 69.7. (p. 39):

"A full system of judicial remedies involves judicial power to annul administrative acts, to compel the taking of such acts, and to prohibit or restrain administrative action. It also comprises consequential relief including powers to compel the administrative authorities to grant compensation or otherwise make reparation [...]."

b) Judicial review of administrative action and private acts of the administration

Acts of the administration not taken in the exercise of public authority are considered as 'private acts' which lie outside the ambit of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts (cf. para. 17 of the Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2004)214 of 19 November 2004) - cited above).

Nevertheless, it is indisputed that the "civil limb" of Article 6 (1) ECHR cover private-law disputes "between an individual and the State to the extent that the latter had been acting as a private person, subject to private law" (cf. the government's submission quoted in para 90 of ECtHR (Plenary), judgement König v. Germany (6232/73) 28 June 1978). Thus, in this regard the protection of Article 6 (1) ECHR is "complementary" to the principles enshrined in Recommendation Rec(2004)20.

Furthermore, with regard to the "obligation to respect human rights" deriving from Article 1 ECHR ("The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention") it is also undisputed that this obligation is independent from the 'legal nature' of an act of public authority of a Party the convention meaning that the question whether this act is (under national law) governed by private law or by public law is irrelevant with regard to the obligation deriving from Article 1 ECHR.

Cf. the wording in ECtHR (GC), judgement N.D. and N.T. v. Spain (8675/15 8697/15 ) 13 Feburary 2020) para. 102 : "Under Article 1 of the Convention, the undertaking of the Contracting States is to "secure" ("reconnaître" in French) to everyone within their "jurisdiction" the rights and freedoms defined in the Convention ([...]. Article 1 makes no distinction as to the type of rule or measure concerned, and does not exclude any part of the member States’ "jurisdiction" from scrutiny under the Convention [...]."

c) Judicial review of administrative action, constitutional review and 'actes de gouvernement'

Cf. the definition set out in Part A (2) of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts:

"By "judicial review" is meant the examination and determination by a tribunal of the lawfulness of an administrative act and the adoption of appropriate measures, with the exception of review by a constitutional court."

Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2004)214 of 19 November 2004):

"13. The Recommendation does not prevent States from defining very limited exceptions established by law, for example certain acts in the field of foreign affairs, international agreements, defence or national security."

"25. The Recommendation does not apply in cases where, in accordance with national legislation, the constitutional court exercises the review. In a number of countries review of certain normative administrative acts is entrusted to the constitutional court. In such cases, a specific procedure is followed, different to that before an administrative tribunal or ordinary court. This is why review of administrative acts by a constitutional court does not fall within the scope of the Recommendation. This does not affect the requirement of compliance with Article 6 of the ECHR. [...]."

Cf., furthermore, CoE (ed.), Protection of the individual in relation to acts of administrative authorities - An analytical survey of the rights of the individual in the administrative procedure and its remedies against administrative acts (1975), pp. 28 f.:

"V. Remedies
A. Is there a remedy against all administrative decisions?
[...].
4. Acts of State
a) In the majority of states "acts of state" are not subject to remedies or most of the remedies (in any case judicial remedies) because they are ususally not considered as administrative acts. The list of these acts varies from one country to another.
[Examples are given from Spain, France, Luxembourg, Norway, Germany, United Kingdom, Sweden, Switzerland, Denmark, Turkey; no 'act of state doctrine' is reported from Finland, Austria, the Netherlands, Italy, Belgium]."

One may deduce from this that the pan-European general principles of judicial review of administrative action do not necessarily apply in cases in which an act of government or parliament is considered under national law as a 'constitutional act' which cannot be reviewed by administrative courts (but - if applicable - are submitted to judicial review by constitutional courts or at least to an effective review of a national authority in the sense of Article 13 ECHR if the infringement of a right and freedom as set forth in the ECHR is at stake).

ECtHR (GC), judgement H. F. and Others v. France (24384/19, 44234/20) 14 September 2022:

"281. The Court observes, secondly, that the situation it has just described could not be remedied by the proceedings brought by the applicants before the domestic courts. Those courts decided that they had no jurisdiction on the grounds that the matter before them concerned acts that could not be detached from the conduct by France of its international relations. This was the finding of the administrative courts, upon the urgent application for an order instructing the competent minister to organise the repatriation of L., M. and their children, or upon the application for the setting-aside of the tacit decision of refusal to take such a measure, and also the finding of the general courts, in response to the applicants’ complaint of an illegal administrative act. As regards the application in the present case of the acts of State doctrine, with its constitutional basis, it is not the task of the Court to interfere with the institutional balance between the executive and the courts of the respondent State, or to make a general assessment of the situations in which the domestic courts refuse to entertain jurisdiction. The question of sole importance is whether the individuals concerned had access to a form of independent review of the tacit decisions to refuse their repatriation requests by which it could be ascertained that those decisions were based on legitimate and reasonable grounds, devoid of arbitrariness, in the light of the positive obligations which stemmed in the present case, in the exceptional circumstances set out above, from the right to enter national territory under Article 3 § 2 of Protocol No. 4. That was not the case, however, in the proceedings before the Conseil d’État or before the Paris tribunal judiciaire."

Cf., e. g., on an exclusion of the possibility of an external review of disciplinary decisions taken by Parliament against Members of Parliament which infringed the freedom of expression (Article 10 ECHR) of Members of Parliament in Parliament: ECtHR (GC), judgement Karácsony and Others v. Hungary (42461/13 and 44357/13) 17 May 2016, para. 133 ff. and 165 ff.; ECtHR, judgement Szanyi v. Hungary (35493/13) 8 November 2016, para. 33 ff.

That an act of government or parliament is considered of 'constitutional nature' under national law and therefore not submitted by national law under judicial review of administrative courts, does, however, not exclude the "obligation to respect human rights" deriving from Article 1 ECHR ("The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention") with regard to these 'constitutional acts'. See, e. g.,

• ECtHR (Plenary), judgement Open Door and Dublin Well Woman v. Ireland (14234/88, 14235/88) 29 October 1992, para. 69;

• ECtHR (GC), judgement United Communist Party of Turkey and Others v. Turkey (19392/92) 30 January 1998, para. 26 ff.

• ECtHR (GC), judgement N.D. and N.T. v. Spain (8675/15 8697/15 ) 13 Feburary 2020) para. 110

3. Notion of "judicial review" - requirements for the independence and impartiality of courts and tribunals

See Part B Principle 3 of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts:

"An independent and impartial tribunal
a) Judicial review should be conducted by a tribunal established by law whose independence and impartiality are guaranteed in accordance with the terms of Recommendation No. R (94) 12.
b) [...]."

Recommendation Rec(2004)20, thus, refers to

• Recommendation No. R (94) 12 of the Committee of Ministers to member states on the independence, efficiency and role of judges the scope of which refers to "all persons exercising judicial functions, including those dealing with constitutional, criminal, civil, commercial and administrative law matters." (cf. on this recommendation the Explanatory memorandum (reproduced in CoE (ed.), The administration and you (1st edition 1996/1997), pp. 511 ff.).

• Recommendation No. R (94) 12 has, however, in the meantime been "updated" by Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, the scope of which is defined (in Chapter 1 No. 1) as being "applicable to all persons exercising judicial functions, including those dealing with constitutional matters" (cf. on this recommendation the Explanatory memorandum (drafted by the CDCJ (CM(2010)147-add1) 21 October 2010)

Thus, as to the requirements for the independence and impartiality of courts conducting judicial review of administrative action no specifc 'CoE requirements' for independence and impartiality of administrative courts seem to be discernible. This is also corresponds to the approach of Part E No. 1 (para. 74 ff.) of Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016.

Cf. also the recent case law of the ECtHR on judicial independence:

• ECtHR (GC), judgement Guðmundur Andri Ástráðsson v. Iceland (26374/18) 1 December 2020, para. 211 ff.

• ECtHR, judgement Xero Flor w Polsce sp. z o.o v. Poland (4907/18) 7 May 2021, para. 243 ff.
  

• ECtHR, judgement Broda and Bojara v. Poland (26691/18 27367/18) 29 June 2021, para. 137 ff.

• ECtHR, judgement Reczkowicz v. Poland (43447/19) 22 July 2021, para. 216 ff.

• ECtHR, judgement Dolińska-Ficek and Ozimek v. Poland (49868/19 57511/19) 8 November 2021, para. 237 ff.

• ECtHR (GC), judgement Grzęda v. Poland v. Poland (43572/18) 15 March 2022, para. 342 ff.

• ECtHR, Juszczyszyn v Poland (35599/20) 6 October 2022, para. 212 ff.

• ECtHR, Wałęsa v Poland (50849/21) 23 November 2023, para. 167 ff.

III. Access to Judicial Review of Administrative Action

1. Part B Principle 2 of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts and Principle V of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities

2. Case law of the ECtHR with regard to the "civil limb" of Article 6 (1) ECHR

3. Facilitating access to justice

4. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016

Part B Principle 2 of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts:

"2. Access to judicial review
a. Judicial review should be available at least to natural and legal persons in respect of administrative acts that directly affect their rights or interests. Member states are encouraged to examine whether access to judicial review should not also be opened to associations or other persons and bodies empowered to protect collective or community interests.
b. Natural and legal persons may be required to exhaust remedies provided by national law before having recourse to judicial review. The length of the procedure for seeking such remedies should not be excessive.
Natural and legal persons should be allowed a reasonable period of time in which to commence judicial review proceedings.
d. The cost of access to judicial review should not be such as to discourage applications. Legal aid should be available to persons lacking the necessary financial resources where the interests of justice require it."

Click here for information on the genesis of Recommendation Rec(2004)20

Principle V of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities:

"Indication of remedies
Where an administrative act which is given in written form adversely affects the rights, liberties or interests of the person concerned, it indicates the normal remedies against it, as well as the time-limits for their utilization."

For the duty to indicate remedies as a pan-European general principle of good administration click here; for the genesis of Resolution (77)31 in general click here

4. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016

"E. Access to justice [...]
2. Fair Trial [...]
a. Access to courts

Do individuals have an effective access to courts?
i. [...]
ii. Is the right to defence guaranteed, including through effective legal assistance? ¹⁰⁸ If yes, what is the legal source of this guarantee?
iii. Is legal aid accessible to parties who do not have sufficient means to pay for legal assistance, when the interests of justice so require? ¹⁰⁹
iv. Are formal requirements,¹¹⁰ time-limits¹¹¹ and court fees reasonable? ¹¹²
v. Is access to justice easy in practice? ¹¹³ What measures are taken to make it easy?
vi. Is suitable information on the functioning of the judiciary available to the public?"

Footnote 108: "Article 6.3.b-c ECHR, Article 14.3 ICCPR; Article 8.2 ACHR; the right to defence is protected by Article 6.1 ECHR in civil proceedings, see e.g. ECtHR Oferta Plus SRL v. Moldova, 14385/04, 19 December 2006, § 145. It is recognised in general by Article 7.1.c ACHPR."
Footnote 109: "Article 6.3.c ECHR, Article 14.3.d ICCPR for criminal proceedings; the right to legal aid is provided up to a certain extent by Article 6.1 ECHR for civil proceedings: see e.g. ECtHR A. v. the United Kingdom, 35373/97, 17 December 2002, § 90ff; for constitutional courts in particular, see CDL-AD(2010)039rev, Study on individual access to constitutional justice, § 113."
Footnote 110: "For constitutional justice, see CDL-AD(2010)039rev, § 125."
Footnote 111: "For constitutional justice, see CDL-AD(2010)039rev, § 112; for time limits for taking the decision, see § 149."
Footnote 112: "On excessive court fees, see e.g. ECtHR Kreuz v. Poland (no. 1) ̧ 28249/95, 19 June 2001, § 60-67; Weissman and Others v. Romania, 63945/00, 24 May 2006, § 32ff; Scordino v. Italy, 36813/97, 29 March 2006, § 201; Sakhnovskiy v. Russia, 21272/03, 2 November 2010, § 69; on excessive security for costs, see e.g. ECtHR Aït-Mouhoub v. France, 22924/93, 28 October 1998, § 57-58; Garcia Manibardo v. Spain, 38695/97, 15 February 2000, § 38-45; for constitutional justice, see CDL-AD(2010)039rev, § 117."
Footnote 113: "On the need for an effective right of access to court, see e.g. Golder v. the United Kingdom, 4451/70, 21 January 1975, § 26ff; Yagtzilar and Others v. Greece, 41727/98, 6 December 2001, § 20ff."

IV. Fair Procedure and Judicial Review of Administrative Action

1. Part B Principle 4 of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts

2. Case Law of the ECtHR with regard to the "civil limb" of Article 6 (1) ECHR

3. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016

4. Recommendation CM/Rec(2012)11 of the Committee of Ministers to member States on the role of public prosecutors outside the criminal justice system

5. The CoE handbook "The administration and you"

V. Scope of Judicial Review of Administrative Action

1. Part B Principles 1.b and 4.e of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts

2. Case Law of the ECtHR on the requirements of Article 6 (1) ECHR on the "intensity" of judicial review in those administrative matters which are considered to be disputes on the "determination of […] civil rights and obligations" within the meaning of Article 6 (1) ECHR

3. Review of "procedural impropriety"

1. Res iudicata as an element of legal certainty

2. Part B Principle 5.a, b and c. of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts

3. Part II of Recommendation Rec(2003)16 of the Committee of Ministers to member states on the execution of administrative and judicial decisions in the field of administrative law

4. Case law of the ECtHR

5. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016

6. The CoE handbook "The administration and you"

3. Part II of Recommendation Rec(2003)16 of the Committee of Ministers to member states on the execution of administrative and judicial decisions in the field of administrative law

"II. Execution of judicial decisions regarding administrative authorities

1. General provisions

a. Member states should ensure that administrative authorities implement judicial decisions within a reasonable period of time. In order to give full effect to these decisions, they should take all necessary measures in accordance with the law.
b. In cases of non‑implementation by an administrative authority of a judicial decision, an appropriate procedure should be provided to seek execution of that decision, in particular through an injunction or a coercive fine.
c. Member states should ensure that administrative authorities will be held liable where they refuse or neglect to implement judicial decisions. Public officials in charge of the implementation of judicial decisions may also be held individually liable in disciplinary, civil or criminal proceedings if they fail to implement them.

2. Execution of judicial decisions entailing an obligation to pay a sum of money

a. Member states should ensure that where administrative authorities are obliged to pay a sum of money, they comply with this obligation within a reasonable period of time.
b. Interest payable by an administrative authority, due to non-implementation of judicial decisions entailing an obligation to pay a sum of money, should be no less than interest payable by a private person to an administrative authority in a similar situation.
c. It should be ensured that the administrative authority has appropriate provision to avoid a situation whereby a lack of funds would prevent it meeting its obligation to pay a sum of money.
d. In the case of non‑implementation by administrative authorities of judicial decisions entailing an obligation to pay a sum of money, member states should also consider opening up the possibility to seize the property of the administrative authorities within the limits prescribed by law."

See also the Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2003)98-Add 3 of 13 August 2003)

 Click here for further information on the genesis of Recommendation Rec(2003)16.

Cf. ECtHR (ed.), Guide on Article 6 of the European Convention of Human Rights - Right to a fair trial (civil limb) (version of August 2022), para. 204 ff.

ECtHR, judgement Maria Mihalache v Romania (68851/16) 30 June 2020:

"67. The Court must take into account the fact that the judgment of 29 June 2016 [...] was the result of contentious proceedings between the applicant and the tax authority, before two levels of jurisdiction. Both courts essentially accepted the applicant’s claims challenging the enforcement started against her, on the basis of the consideration that in the absence of any criminal liability, no tax liability could be established in respect of her either. These findings were binding on the parties, as they were res judicata, pursuant to domestic law, in so far as they were directly determinative of the disputed right [...].
68. Moreover, the appellate court also referred to Article 148 of the TPC [...] to conclude that direct enforcement ended when the tax debt could be considered as extinguished, as it was in the applicant’s case [...]. The Court reiterates that the principle of legal certainty dictates that, where a dispute has been examined on the merits by competent courts, it should be decided once and for all (see in the context of Article 6 of the Convention, Kehaya, cited above, § 68) and its findings should become operative, including by being fully enforced to the benefit of the successful party.
69. However, in the present case, as already mentioned above [...] that outstanding judgment had, at the date of the latest information available to the Court, remained unenforced. Moreover, the Court notes that the domestic court’s decisive findings concerning the lack of any obligation of the applicant to cover the impugned damage caused by an alleged tax evasion remained completely inoperative to her detriment; in fact, the outstanding judgment as a whole was rendered devoid of any legal effect on account on the tax authority’s consistent position as to the existence of a debt to be paid by the applicant, in spite of the findings of the prosecutor and of the court which had absolved her of any such liability in that regard [...].
70. The Court reiterates that particular importance must be attached to the principle of good governance, requiring that public authorities act in an good time, in appropriate manner and with the utmost consistency, when an issue in the general interest is at stake (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000-I, and Megadat.com S.r.l. v. Moldova, no. 21151/04, § 72, 8 April 2008). However, the Court observes that in the present case the domestic authorities have not complied with their above‑mentioned obligations, since they failed to give full effect to the findings of the domestic courts and to thus remedy an error that was attributable to the Customs, as implied by the domestic courts in their reasoning [...].
71. Moreover, the Court cannot see any reasonable justification for the authorities’ continuous calling into question of the rulings of 29 June 2016 by the Suceava County Court.
72. It cannot be maintained, therefore, that the control of the use of the property at issue was lawful, in the sense of the Convention. The present case concerns a failure to recognise the res judicata effect of a final judgment delivered in contentious proceedings. It cannot be considered that a public interest overriding the fundamental principle of legal certainty and the applicant’s rights justified the constant calling into question of the court’s findings that she was no longer a tax debtor, as well as the resulting constant interference with the applicant’s right to peacefully enjoy her property.
73. The above is, in principle, sufficient for the Court to conclude that the interference with the applicants’ "possessions" fell foul of the requirements of Article 1 of Protocol No. 1 (see, mutatis mutandis, Chengelyan and Others v. Bulgaria, no. 47405/07, § 50, 21 April 2016).

"65. The Court emphasises the fact that the applicant, in spite of his recognised incapacity for farm work, remained for a period of twenty-one months without any financial support from the State, and was refused redress. Accordingly, the Court concludes that the fact that the applicant was deprived of the right to obtain a disability pension without any tangible compensation possibility amounts an interference with his rights under Article 1 of Protocol No. 1 to the Convention.
66. As to the question of whether that interference was lawful and pursued a legitimate aim, the Court readily accepts that the principle of legal certainty, construed as the principle of res iudicata, may, as a general rule, constitute a legitimate aim – that is to say it may be "in the public interest", within the meaning of Article 1 of Protocol No. 1 to the Convention. However, even though the Government did not submit any specific observations in this regard, the Court does not deem it necessary to examine these issues in detail in the light of the circumstances of the present case, since the interference in the applicant’s property rights was clearly disproportionate (see paragraphs 67-71 below).
67. Firstly, the Court considers that an excessive burden was imposed on the applicant owing to the fact that, as a result of an incorrect assessment of his state of health by the Fund’s medical experts, he was faced with a total loss of his disability pension, in spite of his being completely unfit for farm work.
Thus, regardless of any aim pursued in the general interest, it can hardly be acceptable that the authorities shifted the consequences of a mistake attributable to them onto the applicant.
68. Secondly, as stated above (see paragraph 61 above), within the context of property rights, particular importance must be attached to the principle of good governance. It is required that public authorities act with the utmost consistency, in particular when dealing with matters of crucial importance to individuals, such as social and welfare benefits and other property rights. In the present case, the Court observes that the domestic authorities, including the domestic courts during the compensation proceedings, failed in their duty to act in good time and in an appropriate manner and with the utmost consistency since they failed to remedy an error that was clearly attributable to the Fund.
69. In this connection it should be observed that the notion of legal certainty, albeit undeniably important in any legal system, is not absolute. The Court considers that in the instant case there were relevant and sufficient reasons to depart from that principle in order to secure respect for social justice and fairness.
70. The Court does not insist that departing from the principle of res iudicata in order to afford redress to the applicant was the only means of the domestic authorities relieving him from the disproportionate burden that had been placed on him. It considers, however, that the domestic authorities should have provided him with a legal solution that involved him being paid compensation by the Fund; this is because it was the Fund that should have borne the consequences of the mistake made by its experts.
71. The foregoing considerations are sufficient to enable the Court to conclude that the interference in the applicant’s property rights was disproportionate."

5. Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016

"E. Access to justice [...]
2. Fair Trial [...]
d. Effectiveness of judicial decisions

Are judicial decisions effective?

i. Are judgments effectively and promptly executed?¹²⁸
ii. Are complaints for non-execution of judgments before national courts and/or the European Court of Human Rights frequent?
iii. What is the perception of the effectiveness of judicial decisions by the public?

107. Judicial decisions are essential to the implementation of the Constitution and of legislation. The right to a fair trial and the Rule of Law in general would be devoid of any substance if judicial decisions were not executed

Footnote 128: "See e.g. See e.g. Hirschhorn v. Romania, 29294/02, 26 July 2007, § 49; Hornsby v. Greece, 18357/91, 19 March 1997, § 40; Burdov v. Russia, 59498/00, 7 May 2002, § 34ff ; Gerasimov and Others v. Russia, 29920/05, 3553/06, 18876/10, 61186/10, 21176/11, 36112/11, 36426/11, 40841/11, 45381/11, 55929/11, 60822/11, 1 July 2014, § 167ff."

6. The CoE handbook "The administration and you"

CoE (ed.), The administration and you (1st edition 1996/1997), p. 39:

"69. 7 [...]. A full system of judicial remedies involves judicial power to annul administrative acts, to compel the taking of such acts, and to prohibit or restrain administrative action. It also comprises consequential relief including powers to compel the administrative authorities to grant compensation or otherwise make reparation, as well as jurisdiction to grant provisional protection."

CoE (ed.), The administration and you (2nd edition 2018), p. 55

"Principle 21 – Execution of court decisions
A legal framework shall be in place to ensure that public authorities implement court orders, including orders for the payment of compensation, within a reasonable time.
[...]
Commentary
Where a public authority has not implemented a court order following a successful appeal by an individual, an appropriate procedure shall be put in place to ensure its proper execution (Agrokompleks v. Ukraine). Orders for compensation shall be executed within a reasonable time (see above, Principle 16). Provision should also be made in national law to make public officials in charge of the implementation of judicial decisions in respect of administrative decisions individually liable in disciplinary, civil or criminal proceedings should they fail to implement them."

VII. Provisional Court Protection in Administrative Matters

1. Part B Principle 5.d of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts

2. Recommendation R(89)8 of the Committee of Ministers to member states on provisional court protection in administrative matters 

3. The CoE handbook "The administration and you"

4. Case law of the ECtHR

2. Recommendation R(89)8 of the Committee of Ministers to member states on provisional court protection in administrative matters

"I.
When a court is seized of a challenge to an administrative act, and the court has not yet pronounced its decision, the applicant may request the same court or another competent court to take measures of provisional protection against the administrative act.
The person concerned shall have the same right to request a competent court to take measures of provisional protection, prior to his challenging the act, in case of urgency or when an administrative complaint, the making of which does not have in itself any suspensive effect, has been lodged against the administrative act and has not yet been decided.
II.
In deciding whether the applicant should be granted provisional protection, the court shall take account of all relevant factors and interests. Measures of provisional protection may in particular be granted if the execution of the administrative act is liable to cause severe damage which could only be made good with difficulty and if there is a prima-facie case against the validity of the act.
III.
Measures of provisional protection ordered by the competent court may take the form of suspending the execution of the administrative act, wholly or partially, ordering wholly or partially the restoration of the situation which existed at the time when the administrative act was taken or at any subsequent time, and imposing on the administration any appropriate obligation in accordance with the powers of the court.
Measures of provisional protection shall be granted for such period as the court thinks fit. They may be subject to certain conditions. They may be revised.
Measures of provisional protection in no way prejudge the decision to be taken by the court seized of the challenge to the administrative act.
IV.
Proceedings before the court shall be speedy.
Save in cases of urgency, the procedure shall be adversarial and shall allow access by interested third persons.
When, in cases of urgency, interested persons could not be heard before the court granted provisional protection, the matter shall be liable to a new examination within a short time, under a procedure conforming to the preceding sub-paragraph."

Cf. the Explanatory memorandum (drafted by the CDCJ (pp. 72 ff. of the meeting report of the 51st meeting of the CDCJ (CM (89)128) 7 July 1989)

3. The CoE handbook "The administration and you"

CoE (ed.), The administration and you (1st edition 1996/1997), pp. 41 ff.:

"B. – Provisional protection
73. When an administrative act is challenged, the complainant has the right to request a court to grant him or her provisional protection. The court may grant such protection where the interests of the private person in obtaining such protection outweigh the public interest and the interests of other persons concerned. This may happen where the administrative act challenged will cause (or is likely to cause) the private person severe damage which is irreparable or difficult to repair in case of a successful challenge.
73.1. Comment: Provisional protection is one of the most important means by which, in favour of the private person, the effectiveness of remedies against administrative action can be assured. In some jurisdictions, a degree of provisional protection is automatically assured upon the bringing of an appeal to an administrative court because of the existence of a rule that such an appeal has suspensory effect in relation to the administrative act under challenge. In other cases, such suspensory effect has to be sought by means of a separate order from the appellate tribunal. Even under the most efficient of judicial systems, the complexity of many cases is liable to result in some delay before a hearing can take place and a judgment on the merits can be delivered. Therefore no system of effective remedies would be complete without the possibility for the applicant to seek provisional protection by way of suspension of the administrative act or an injunction restraining its enforcement pending the substantive hearing and determination of his claim. Provisional protection is not merely a desirable adjunct of the system of remedies against administrative acts ;
it is an essential element of such a system.
[...]."

CoE (ed.), The administration and you (2nd edition 2018), pp. 53 f.:

"Principle 20 – Interim or provisional protection
Courts and administrative tribunals shall have the power to grant interim or provisional protection pending the determination of an appeal against an administrative decision.
[...]
Commentary
Interim or provisional protection is one of the most important means by which an individual can be guaranteed an effective remedy against a public authority because it maintains (or restores) the status quo in his or her favour pending the outcome of the appeal. This is important because, even under the most efficient of judicial systems, the complexity of many cases is liable to result in considerable delay before the appeal can be determined. Suspension of the administrative decision or an injunction restraining its enforcement pending the outcome of the appeal is therefore essential for a system of effective remedies.
Such protection may take the form of suspending execution of the administrative decision (wholly or partially), ordering restoration of the situation prior to the administrative decision (wholly or partially), or any other order appropriate to the circumstances of the case and within the powers of the court or administrative tribunal.
The principle of interim or provisional protection applies particularly in circumstances where an individual will suffer severe damage or loss which the public authority will have difficulty in compensating should the appeal be successful.
Interim or provisional protection arises in those cases where an administrative decision is immediately enforceable, or has already been enforced. Any request to have its enforcement postponed, limited or modified vis-à-vis the individual who is challenging it must, therefore, be examined rapidly. This means that standard procedural time limits and time frames may have to be shortened considerably and that full hearings may be limited. The proceedings must, however, remain adversarial, the aim being to arbitrate, albeit provisionally, between the different competing interests. The proceedings should involve the applicant and a representative of the public authority, as well as any other party directly affected by the disputed administrative decision. Other persons not directly affected may be allowed to present their views but may not necessarily be summoned. When urgency requires that the application is to be heard ex parte (i.e. with only the appellant present or represented) and the court decides to make an order for provisional protection, it should only be a temporary order pending a hearing with all the parties involved to be organised as soon as possible thereafter.
In deciding whether or not to order provisional protection the court must weigh the interests of the individual in maintaining the pre-existing situation against the public interest and the interests of third parties in enforcing the administrative decision. Relevant factors will include the degree of damage or loss suffered, the possibility of compensation for any damage or loss suffered and the prospects of the appeal being successful (for example, by requiring the individual to establish a prima facie or well-founded case without prejudging the outcome of the appeal). The court may impose conditions in the order granting provisional protection and it may subsequently modify the order."

4. Case law of the ECtHR

ECtHR, judgement M. K. and Others v. Poland (40503/17, 42902/17 and 43643/17) 23 July 2020:

"(a) General Principles
142. The Court has indicated numerous times that the rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation (see A.E.A. v. Greece, no. 39034/12, § 47, 15 March 2018). Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured. The effect of that provision is thus to require the provision of a domestic remedy to deal with the substance of an "arguable complaint" under the Convention and to grant appropriate relief. The scope of the Contracting States’ obligations under Article 13 varies, depending on the nature of the applicant’s complaint. However, the remedy required by Article 13 must be "effective" in practice as well as in law. The "effectiveness" of a "remedy" within the meaning of the Convention does not depend on the certainty of a favourable outcome for the applicant. Nor does the "authority" referred to in that provision necessarily have to be a judicial authority; however, if it is not, its powers and the guarantees that it affords are relevant in determining whether the remedy before it is effective (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI, and Gebremedhin [Gaberamadhien], cited above, § 53).
143. In view of the importance that the Court attaches to Article 3 of the Convention and the irreversible nature of the damage that may result if a risk of torture or ill-treatment materialises, it has already held that the effectiveness of a remedy available to an applicant who alleges that his or her removal to a third State would expose him or her to treatment prohibited under Article 3 of the Convention imperatively requires close scrutiny by a national authority (see Shamayev and Others v. Georgia and Russia, no. 36378/02, § 448, ECHR 2005‑III), independent and rigorous scrutiny of any claim that there exist substantial grounds for fearing a real risk of treatment breaching Article 3 (see Jabari v. Turkey, no. 40035/98, § 50, ECHR 2000‑VIII), and a particularly prompt response (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004‑IV (extracts)); it also requires that the person concerned should have access to a remedy with automatic suspensive effect (see Čonka v. Belgium, no. 51564/99, §§ 81-83, ECHR 2002‑I; Gebremedhin [Gaberamadhien], cited above, § 66; M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 293, ECHR 2011; and A.E.A. v. Greece, cited above, § 69).
144. The Court has reached a similar conclusion in relation to complaints made under Article 4 of Protocol No. 4 to the Convention, stating that a remedy against an alleged violation of this provision does not meet the requirements of effectiveness if it does not have suspensive effect. The notion of an effective remedy under the Convention requires that the remedy be capable of preventing the execution of measures that are contrary to the Convention and whose effects are potentially irreversible (see Čonka, § 79, and Hirsi Jamaa and Others, § 199, both cited above).
(b) Application of the above principles to the present case
145. The Court observes that all the complaints raised by the applicants in the present cases (whether made under Article 3 of the Convention, Article 4 of Protocol No. 4 to the Convention, Article 13 of the Convention in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 or under Article 34 of the Convention) relate to the same circumstances, namely the fact that the applicants were returned from the Polish border and sent back to Belarus without an asylum procedure being instigated. Therefore, the effectiveness of the remedy available to them has to be examined with regard to the execution of this measure, jointly for all of the complaints.
146. The Court notes that the applicants had the possibility of lodging an appeal against each of the decisions concerning refusal of entry within fourteen days of being informed of those decisions. However, there is no dispute that under Polish law such appeals would not have had suspensive effect on the return process [...]. It follows that the applicants did not have access to a procedure by which their personal circumstances could be independently and rigorously assessed by any domestic authority before they were returned to Belarus (see M.A. and Others v. Lithuania, cited above, § 84).
147. In the instant case the applicants’ complaints concerned allegations that their return to Belarus would expose them to a real risk of suffering treatment contrary to Article 3 of the Convention. Therefore, the Court considers that the sole fact that an appeal against the decision on refusal of entry would not have had suspensive effect (and, in consequence, could not have prevented the applicants from being turned away to Belarus) is sufficient to establish that such an appeal – and any further appeals to the administrative court that could have been brought subsequently to it – did not constitute an effective remedy within the meaning of the Convention (see paragraph 143 above). Consequently, the Court does not deem it necessary to consider the remainder of the applicants’ arguments concerning the lack of adequate information and legal assistance in the appeal procedure, the lack of independence of the head of the National Border Guard, the potential length of the proceedings before the administrative courts, or the obstacles resulting from the need to lodge such an appeal from abroad.
148. Accordingly, the Court dismisses the Government’s objection concerning the non-exhaustion of domestic remedies."