The Pan-European General Principles on Non-Judicial Review and Oversight of Administrative Action
(compiled by Ulrich Stelkens)
I. The Pan-European General Principles on Internal Review of Administrative Action
II. The Pan-European General Principles on External Review by Ombudsman Institutions
IV. The Pan-European General Principles on Mediation in Administrative Disputes
I. The Pan-European General Principles on Internal Review of Administrative Action
3. Unfinished project of the CJ-DA for a recommendation on administrative appeals
4. The CoE handbook "The administration and you"
1. Article 22 (2) 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 oft 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
2. Recommendation Rec (2001)9 of the Committee of Ministers to member states on alternatives to litigation between administrative authorities and private parties
"1. The Committee of Ministers [...]
3. Recalling Recommendation No. R (81) 7 on measures facilitating access to justice, which in its appendix called for measures to encourage the use of conciliation and mediation;
4. Recalling Recommendation No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts, which calls for encouraging, in appropriate cases, the use of friendly settlement of disputes, either outside the judicial system altogether or before or during legal proceedings;
5. Considering, on the one hand, that the large amount of cases and, in certain states, its constant increase can impair the ability of courts competent for administrative cases to hear cases in a reasonable time, within the meaning of Article 6.1 of the European Convention on Human Rights;
6. Considering, on the other hand, that the courts' procedures in practice may not always be the most appropriate to resolve administrative disputes;
7. Considering that the widespread use of alternative means of resolving administrative disputes can allow these problems to be dealt with and can bring administrative authorities closer to the public;
8. Considering that the principal advantages of alternative means of resolving administrative disputes may be, depending on the case, simpler and more flexible procedures, allowing for a speedier and less expensive resolution, friendly settlement, expert dispute resolution, resolving of disputes according to equitable principles and not just according to strict legal rules, and greater discretion;
9. Considering, therefore, that in appropriate cases it should be possible to resolve administrative disputes by means other than the use of courts;
10. Considering that the use of alternative means should not serve administrative authorities or private parties as a means of avoiding their obligations or the rule of law;
11. Considering that, in all cases, alternative means should allow judicial review, as this constitutes the ultimate guarantee for protecting both users' rights and the rights of the administration;
12. Considering that alternative means to litigation must respect the principles of equality and impartiality and the rights of the parties;
13. Recommends that the governments of member states promote the use of alternative means for resolving disputes between administrative authorities and private parties by following, in their legislation and their practice, the principles of good practice contained in the appendix to this recommendation.Appendix
I. General Provisions [...].
II. Relationship with courts [...].
III. Special features of each alternative means
1. Internal reviews
i. In principle, internal reviews should be possible in relation to any act. They may concern the expediency and/or legality of an administrative act.
ii. Internal reviews may, in some cases, be compulsory, as a prerequisite to legal proceedings.
iii. Internal reviews should be examined and decided upon by the competent authorities."
Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2001)121 Addendum I) 3 August 2001):
"37. For the purposes of the recommendation, terms are defined as follows:
38. Internal reviews: an appeal procedure before a competent administrative authority;
39. This competent authority can be the authority which issued the contested act, a higher authority in the administrative hierarchy or an authority especially designated for that purpose. [...].""86. Internal reviews aim to secure the revision of an administrative act or the payment of compensation. They are addressed to the administrative authorities themselves and, depending on the systems used in the member states, consist in either an appeal to the authority which issued the contested act, or an appeal to a higher authority in the administrative hierarchy, or an appeal to another authority specially designated for the purpose.
87. Internal reviews are intended to enable the administrative authorities to reconsider their act for reasons of legality or expediency. They should be available in relation to any act and in some may be a prerequisite for subsequent referral to a court.
88. The outcome of internal reviews, if they are successful, is the amendment or setting aside of the administrative act challenged, or the payment of compensation."
Recommendation Rec(2001) 9 was preceded by a 'Multilateral Conference' in Lisbon (31 May – 2 June 1999) organized by the CJ-DA. Its proceedings are published in CoE (ed.), Alternatives to Litigation between Administrative Authorities and Private Parties: Conciliation, Mediation and Arbitration (2000).
See for the "travaux préparatoires" of the CJ-DA for Recommendation Rec (2001)9: point III of the Report on the 11th Meeting of the CJ-DA (23 - 26 October 1998 - CJ-DA (98) 6); point 3.2. of the Report on the 12th Meeting of the CJ-DA (14 - 17 September - CJ-DA (1999) 6); point. 4.2. of the Report on the 13th Meeting of the CJ-DA (2 - 4 October 2000 - CJ-DA (2002) 8)
See furthermore "travaux préparatoires" of the Working Group of the CJ-DA: Report on the Working Group's 1st Meeting (12 April 1999 - CJ-DA-GT(1999) 1); Report on the Working Group's 2nd Meeting (8 - 10 November 1999 - CJ-DA-GT(1999) 4); Report on the Working Group's 3rd Meeting (10 - 12 April 2000 - CJ-DA-GT(2000) 3); Report on the Working Group's 4th Meeting (3 - 5 July 2000 - CJ-DA-GT(2000) 5).
3. Unfinished project of the CJ-DA for a recommendation on administrative appeals
Working Group of the CJ-DA, Report on the desirability of preparing a recommendation on administrative appeals (CJ-DA-GT(2007) 9 E) 7 December 2007:
"8. From a human rights protection point of view, administrative appeals have a threefold function : firstly, they empower the public authorities to correct in a simple, quick and cost effective manner its mistakes regarding law enforcement, including infringement of human rights. Therefore administrative appeals are used as a tool of good administration, as stated in Article 22 of the code of good administration (Recommendation CM/Rec(2007)7 on good administration). Secondly, administrative appeals make it possible to reduce the workload of the courts which are reviewing administrative decisions, either by cutting the number of judicial reviews, or by facilitating these courts’ examination of the law and the facts of cases, so they contribute towards ensuring the efficiency of justice (see Recommendation Rec(2001)9 on alternatives to litigation between administrative authorities and private parties, Chapter III.1). Thirdly, administrative appeals allow for a review of the appropriateness of decisions where a margin of discretion is provided for by law to public authorities which is not always the position in relation to judicial review. However, it should be pointed out that the requirement for a reasonable time limit of the procedure, which derives from Article 6 of the European Court of Human Rights, requires that the administrative appeal do not unecessarily extend in duration the procedure and that it is an efficient remedy by itself.
9. The CJ-DA-GT is of the view that the preparation of a recommendation on internal administrative appeals is desirable. Firstly, a recommendation of this kind would usefully complement Recommendation Rec(2004)20 on judicial review of administrative acts, in governing the phase prior to access to the court, as well as Recommendations Rec(2001)9 on alternatives to litigation and CM/Rec(2007)7 on good administration, both of which make only a very cursory mention of administrative appeals. A recommendation would make it possible to lay down a number of minimum standards for increasing the efficiency of administrative appeals. In particular, reinforcing the adversarial dimension of the procedure would guarantee that all the arguments of the parties would already be examined by the administrative appeals authority. Furthermore, it must be pointed out that the broad consensus among the States which replied to the questionnaire does not call into question the desirability of a recommendation. Firstly, this consensus facilitates the establishment of minimum standards and secondly consensus should be sought where differences exist."
The report was based on a questionnaire and a Compendium of Replies to Questionnaire on Administrative Appeals in Europe (CJ-DA-GT (2007) 4) 10 December 2007 and proposed a recommendation dealing above all with (already quite elaborated) minimum standards concerning the conditions for lodging the appeal (i), the processing of the appeal (ii), the decision of the appeal authority (iii) and some additional matters to be discussed further.
However, the project was stopped because the CJ-DA was dissolved for financial reasons, cf. para. 7 and 14 f. of the Report on the Working Group's 3rd Meeting (5 - 7 December 2007 - CJ-DA-GT(2007) 10).
Click here for more information of this 'suspended' project.
4. The CoE handbook "The administration and you"
CoE (ed.), The administration and you (1st edition 1996/1997), p. 37 and p. 43:
"67. The second type of control, internal review by the administrative authorities, plays an important part in practice. It offers the possibility of settling problems between the private person and the administrative authorities speedily, with little or no cost and out of court [...]."
"II – Internal review by the administrative authorities
77. In addition to judicial review, national legislation may also permit or require an appeal against an administrative act to be made to the administrative authorities. The administrative authority competent for such a review may be the one which had taken the administrative act in question, or a superior authority, or a special appellate authority.
77.1. Comment: The more the powers of courts in reviewing administrative acts are limited, the more important is internal review by administrative authorities. Where courts are not empowered, for instance, to review the merits of a case or to replace the discretion exercised by the administrative authority by its own discretion, it lies with the administration itself to correct shortcomings in this respect. The legislator may prefer reserving such internal review of discretion to senior administrative authorities in view of, in particular, the democratic control to which administrative authorities are subject. Moreover, an appeal to an administrative authority may have advantages of speed, cost and informality over judicial review.
77.2. Comment: In some countries it is a precondition for the challenging of an administrative act before a court that the act shall have been the subject of a prior administrative complaint. Only after such a complaint has been brought and the time laid down by law for a response to it has elapsed, can proceedings to review the legality of the act be brought before an administrative court. In other countries, it is, to the contrary, the internal administrative review which must be halted until the judicial review is completed. But, in any event, the existence of the possibility of an administrative review must not preclude the right to a judicial review.
77.3. Comment: The standards set out in Chapters 2 and 3 of this handbook apply also to the internal review by the administrative authorities. Indeed, an application for an internal review may be regarded as a type of representation, as referred to in paragraph 33. Where the procedural principles contained in Chapter 3 have been complied with in respect of the taking of the administrative act against which the appeal is brought, the procedures in respect of the appeal may be curtailed, provided that the complainant is not thereby placed at an unfair disadvantage.
77.4. Comment: In the case of an appeal against an administrative sanction, the administrative decision (act) taken regarding an appeal should not be less favourable (“reformatio in pejus”) to the person concerned than the initial administrative act against which the appeal was lodged."
CoE (ed.), The administration and you (2nd edition 2018), p. 43 f.:
"Appeals to the courts and judicial review of administrative acts are essential elements of a state governed by the rule of law and the separation of powers. [...]. However, other avenues of review, which are quicker, cheaper and less formal are equally important for individuals, namely internal (or administrative) reviews undertaken by the public authority itself and non-judicial reviews by an ombudsperson or similar institution. Principles 17 and 18 deal with these non-judicial forms of review and appeal.
Principle 17 - Internal review
Everyone adversely affected by an administrative decision made by a public authority shall be entitled to request an internal review of that decision.
[...]
Commentary
The nature of an internal review will depend on the type of administrative decision to be reviewed. It should be carried out by competent persons within the public authority. An internal review may be a prerequisite for an appeal to a court. A request for an internal review should of itself suspend time limits for instigating an appeal to a court. An individual must not suffer any prejudice from a public authority for appealing against an administrative decision or requesting an internal review.
Where courts are not empowered to review the merits of a case or replace a decision when that decision is taken by a public authority exercising its discretion, it lies with the public authority itself to correct any shortcomings in its actions.
The principle of internal review is based on the assumption that internal reviews precede court proceedings and this is the preferred option, although the lodging of an appeal to a court in some legal systems has the effect of suspending the internal review until such time as the appeal is determined by the court.
The substantive and procedural principles described in chapters I and II also apply to internal reviews. In some cases the internal review may form part of the internal decision-making process of the public authority. Where the procedural principles have been complied with when the initial decision was made, the review may curtail these procedures if the individual’s rights and interests are not prejudiced.
It is important to distinguish between internal reviews within the public authority itself and formal review bodies established so individuals have access to an administrative appeal. The latter must be independent of the public authority whose decision is being challenged and must comply with Principles 19 to 21 (judicial review and appeals). Internal reviews are one of several alternatives to litigation and court action for resolving disputes between public authorities and individuals. Other alternatives are conciliation, mediation, negotiated settlement and arbitration.
5. Subsidiary applicability of the pan-European general principles on discretion, on administrative procedure and on judicial review
As the CoE handbook "The administration and you" (1st edition (1996/1997), para. 77-3 (p. 43) (2nd edition 2018), p. 44) the decison stating on the internal review can be considered
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as an 'administrative act' in the sense of in the sense of Resolution (77)31 on the protection of the individual in relation to the acts of administrative authorities ("any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons wether physical or legal (administrative acts")
and
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as an 'administrative act' in the sense of Recommendation No R(80)2 of the Committee of Ministers to member states concerning the exercise of discretionary powers by administrative authorities ("any individual measure or decision which is taken in the exercise of public authority and which is of such nature as directly to affect the rights, liberties or interests of persons wether physical or legal (administrative acts)"
and
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as an 'individual decision' ("Individual decisions are those addressed solely to one or more individuals.") in the sense of Section II of the Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration
and
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as an 'administrative act' in the sense of Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts ("legal acts – both individual and normative – [...] taken in the exercise of public authority which may affect the rights or interests of natural or legal persons").
Thus, the basic principles enshrined in these recommendations may apply also to decisions on internal review,. Therefore, the basic principles enshrined in these recommendations may apply also to these decisions, i.e. the pan-European general principles
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on discretion (for these principles click here),
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fair administrative procedure, namely on taking action within a reasonable time limit, on the right to be heard and access to files, the right to representation and assistance, as well as the obligation to take decisions on the basis of duly established acts and, finally, the obligation to give reasons (for these principles click here) and
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on judicial review (for these principles click here).
II. The Pan-European General Principles on External Review by Ombudsman Institutions
5. The CoE handbook "The administration and you"
1. Recommendation No. R (85) 13 of the Committee of Ministers to member states on the institution of the ombudsman
The recommendation is accompanied by a footnote according to which the "term Ombudsman in this recommendation relates to Ombudsmen, parliamentary commissioners, mediators and persons discharging similar functions"
"The Committee of Ministers [...];
Bearing in mind Assembly Recommendation 757 (1975) on the conclusions of the meeting of the Assembly’s Legal Affairs Committee with the ombudsmen and parliamentary commissioners in Council of Europe member states, held in April 1974 ;
Having regard to Resolution No. 2 of the European Ministerial Conference on Human Rights on the role of the Council of Europe in the further realisation of human rights (Vienna, 19-20 March 1985) ;
Welcoming the remarkable development of the institution of the ombudsman in recent years at national, regional and local level in Council of Europe member states ;
Considering that, having regard to the complexities of modern administration, it is desirable to supplement the usual procedures of judicial control ;
Recalling the functions of the ombudsman involving, inter alia, consideration of individual complaints concerning contended errors or other shortcomings on the part of the administrative authorities with a view to enhancing the protection of the individual in his dealings with those authorities ;
Considering that through these functions the institution of the ombudsman can, bearing in mind the specific situation in each country, contribute towards the strengthening of parliamentary control ;
Considering, furthermore, that the opinions of the ombudsman may constitute a major factor in the evolution of general principles and rules governing the functioning of the administration and the conduct of public employees,
Recommends the governments of member states :
a. to consider the possibility of appointing an ombudsman at national, regional or local level or for specific areas of public administration ;
b. to consider empowering the ombudsman, where this is not already the case, to give particular consideration, within his general competence, to the human rights matters under his scrutiny and, if not incompatible with national legislation, to initiate investigations and to give opinions when questions of human rights are involved ;
c. to consider extending and strengthening the powers of the ombudsman in other ways so as to encourage the effective observance of human rights and fundamental freedoms in the functioning of the administration."
Recommendation No. R (85) 13 of the Committee of Ministers to member states on the institution of the ombudsman was adopted the same day as Resolution (85) 8 on co-operation between the ombudsmen of member states and between them and the Council of Europe
2. PACE Recommendation 1615 (2003) "The institution of Ombudsman" and PACE Resolution 1959 (2013) "Strengthening the institution of ombudsman in Europe"
PACE Recommendation 1615 (2003)
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spells out (in point 7. 1 to 71.14) certain "characteristics" that are "essential for any institution of ombudsman to operate effectively" spells out (in point 7. 1 to 71.14) certain "characteristics" that are "essential for any institution of ombudsman to operate effectively" (constitutional entrenchment, independence, transparent appointment procedures, sufficient resources, ...)
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recommends (in point 8) that the work of the CoE in administrative matters "could usefully be consolidated into a single text providing guidance, instruction and information to both administrative officials and members of the public in their mutual relations (which led to the adoption of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration, cf. the 'outline' of the origins of Recommendation CM/Rec(2007)7 in Appendix IV of the Report on the 18th Meeting of the CJ-DA (11 - 13 October 2006 - CJ-DA (2006) 7)
"10. Accordingly, the Assembly recommends that the governments of Council of Europe member states:
10.1. create at national level (and at regional and local level as appropriate), where it does not already exist, an institution bearing a title similar to that of “parliamentary (/regional/ local government) ombudsman”, preferably by incorporation into the constitution;
10.2. ensure that the institution of parliamentary ombudsman exhibits the characteristics described in paragraph 7 above, and that these characteristics are sufficiently protected and appropriately elaborated in the enabling legislation and statute;
10.3. give this institution a mandate which clearly encompasses human rights as being fundamental to the concept of good administration, and which includes a wider role in human rights protection where, in the absence of specific complementary alternative mechanisms, national circumstances so require;
10.4. exclude from the mandate of this institution the power to enter into litigation against either the administration or individual officials, whether before criminal or administrative courts, but to consider allowing the ombudsman to apply to the constitutional court for interpretative judgments;
10.5. engage fully with the Commissioner for Human Rights in his work of co-ordinating the activities of member states’ ombudsmen;
10.6. following the drafting of a model text by the Committee of Ministers, adopt at constitutional level an individual right to good administration;
10.7. following the drafting of a model text by the Committee of Ministers, adopt and implement fully a code of good administration, to be effectively publicised so as to inform the public of their rights and legitimate expectations.
11. The Assembly further recommends that the Committee of Ministers:
1.1. encourage member states to implement Recommendation No. R (85) 13, whilst also giving effect to the more detailed provisions of the present recommendation;
11.2. draft a model text for a basic individual right to good administration;
11.3. draft a single, comprehensive, consolidated model code of good administration, deriving in particular from Committee of Ministers Recommendation No. R (80) 2 and Resolution (77) 31 and the European Code of Good Administrative Behaviour, with the involvement of the appropriate organs of the Council of Europe – in particular the Commissioner for Human Rights and the European Commission for Democracy through Law, as well as the Assembly – and in consultation with the European Ombudsman, thus providing elaboration of the basic right to good administration so as to facilitate its effective implementation in practice;
11.4. encourage and provide technical assistance to governments of Council of Europe member states in adopting and implementing the above-mentioned right and code;
11.5. support the Commissioner for Human Rights in his work of co-ordinating the activities of member states’ ombudsmen."
PACE Resolution 1959 (2013) mainly
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recalls the previous work of the CoE in the subject,
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recommends an implementation of PACE Recommendation 1615 (2003)
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"encourages" the "member States which have not yet set up a national generalist ombudsman to promptly establish such a body with a broad mandate, allowing individuals to complain about maladministration cases and violations of their human rights and fundamental freedoms, while ensuring a clear division of competences between ombudsman institutions and judicial review of administrative acts, which must be available at least in case of violations of human rights and fundamental freedoms."
3. Venice Commission, Principles on the Protection and Promotion of the Ombudsman Institution ("The Venice Principles") (Opinion No. 897/2018, CDL-AD(2019)005) 3 May 2019
Cf. on these principles also the website of the Venice commission on Ombudsman institutions and the "Compilation of Venice Commissions Opinions concerning the Ombudsman institution (CDL-PI(2022)022) 6 May 2022"
4. Recommendation CM/Rec(2019)6 of the Committee of Ministers to member states on the development of the Ombudsman institution
"The Committee of Ministers of the Council of Europe [...]
Welcoming the remarkable development that has taken place since the adoption of Recommendation Rec(85)13 on the institution of the Ombudsman in the great majority of the Council of Europe member States with respect to the establishment of Ombudsman institutions1 at national, regional and local level, including those dealing with specific, thematic issues;
Welcoming the steady development of the functions of Ombudsman institutions which have expanded beyond the original mandate concerning maladministration and the rule of law;
Noting with satisfaction that Ombudsman institutions now constitute an important feature of democratic governance and play a key role in the protection and promotion of human rights and the rule of law in the vast majority of Council of Europe member States;
Underlining the great potential of Ombudsman institutions for the promotion and protection of human rights in Europe, not least for the effective implementation of the European Convention on Human Rights (ETS No. 5);
Acknowledging the importance of continuing support by the Council of Europe and other international stakeholders to Ombudsman institutions and welcoming the well-established co-operation between the Commissioner for Human Rights of the Council of Europe and Ombudsman institutions, as well as their networks, as foreseen in the Commissioner’s mandate under Resolution Res(99)50 on the Council of Europe Commissioner for Human Rights;
Acknowledging further the importance of the co-operation between Ombudsman institutions and their various networks, and of their co-operation with the Council of Europe and other international stakeholders;
Bearing in mind the relevant international texts in support of the development and protection of Ombudsman institutions;2
Acknowledging the diversity of Ombudsman institutions, which reflects the diversity of the countries and regions they serve;
Emphasising nonetheless that it is vitally important for any such institution to be governed by a number of core principles, including the following:
- independence;
- impartiality, objectivity and fairness;
- integrity and high moral authority;
- a comprehensive mandate;
- accessibility; and
- effectiveness;
Expressing grave concern about the challenging working conditions, threats, pressures and attacks which Ombudsman institutions and their staff are at times exposed to in member States;
Wishing to develop its Recommendation Rec(85)13 on the institution of the Ombudsman, henceforth replaced by the present instrument,
Recommends that the governments of member States:
1. ensure that the principles set out in the appendix to this recommendation are implemented in relevant domestic law and practice;
2. strengthen Ombudsman institutions and avoid any measures which might weaken them, and evaluate on a regular basis the effectiveness of the measures taken;
3. ensure, by appropriate means and action – including, where appropriate, translation – a wide dissemination of this recommendation among competent authorities and stakeholders;
4. examine, within the Committee of Ministers, the implementation of this recommendation no later than five years after its adoption."
Footnote 1: "The term "Ombudsman institutions" is used in this recommendation regardless of gender and to designate institutions such as those of an Ombudsman, Mediator, Parliamentary Commissioner, People's Defender, People’s Advocate, Human Rights Commissioner, Inspector General of Government, Public Protector, etc."
Footnote 2 refers to
– Recommendation Rec(97)14 of the Committee of Ministers to member States on the establishment of independent national institutions for the promotion and protection of human rights;
– Recommendation CM/Rec(2018)11 of the Committee of Ministers to member States on the need to strengthen the protection and promotion of civil society space in Europe;
– Parliamentary Assembly Resolution 1959 (2013) on "Strengthening the institution of ombudsman in Europe";
– Congress of Local and Regional Authorities of the Council of Europe Resolution 327 (2011) on “The office of Ombudsperson and local and regional authorities”;
– Principles on the protection and promotion of the Ombudsman institution (“The Venice Principles"), adopted by the European Commission for Democracy through Law (Venice Commission) at its 118th Plenary Session (Venice, 15-16 March 2019);
– ECRI General Policy Recommendation No. 2 (revised) on Equality Bodies to combat racism and intolerance at national level, adopted on 7 December 2017;
– United Nations General Assembly Resolution 48/134 of 20 December 1993 on national institutions for the promotion and protection of human rights (“The Paris Principles”);
– United Nations General Assembly Resolutions 65/207 of 21 December 2010, 67/163 of 20 December 2012, 69/168 of 18 December 2014, 71/200 of 19 December 2016 and 72/186 of 19 December 2017 on the role of the ombudsman, mediator and other national human rights institutions in the promotion and protection of human rights;
– the by-laws of the International Ombudsman Institute, adopted on 13 November 2012.
The Appendix of Recommendation CM/Rec(2019)6 spells out Principles (I.) on the "establishment and fundamental characteristics of Ombudsman institutions" (princples 1 to 7), to the "main tasks of Ombudsman institutions (principles 8 to 10) and on "cooperation and dialogue" (principles 11 to 13).
5. The CoE handbook "The administration and you"
CoE (ed.), The administration and you (1st edition 1996/1997), p. 37 and pp. 43 f.:
"68. Review of the ombudsman type also plays an important part, as it may offer the possibility of stating an opinion on both the lawfulness and the suitability of the conduct of the authorities, thus helping to avoid future problems between private persons and administrative authorities. The statement of opinion may, in fact, serve as a guideline for the administrative authorities in carrying out their duties.
68.1. Comment: The private person may also make use of other methods of challenging an administrative act, such as asking his or her elected representative or the media to take up the case. However, these methods do not result directly in a remedy in the same way as judicial review or a review by the administrative authority or an ombudsman do.""III – External review of the ombudsman type
78. In addition to judicial review there should be provision for an external institution of the ombudsman type consisting of one or several persons who:
(i) are independent ;
(ii) are preferably elected by parliament ;
(iii) act for the purpose of protecting the rights and freedoms of private persons and reviewing the lawfulness and fairness of the administrative acts ;
(iv) have the right of access to the files of the administrative authorities ;
(v) may act under informal procedures ;
(vi) are vested with powers to initiate investigations and express opinions and make administrative or legislative recommendations.
78.1. Comment: The institution of the parliamentary ombudsman is essentially based on the ideas of the protection of rights of the individual and the need for legal supervision of those who are entrusted with the exercise of public power. It has spread to numerous countries in all parts of the world. The experience of the institution of the ombudsman has shown that the opinions of ombudsmen do not only influence individual cases, in which a citizen contests an administrative act or complains about the conduct of a civil servant, but may also constitute a major factor in the evolution of general principles and rules governing the functioning of the administration and the conduct of public employees.
78.2. Comment re (i) and (ii): An ombudsman must be independent of political authorities and of those who exercise executive power and as far as possible act independently of the organ which has granted him or her powers. It is important that the ombudsmen are appointed only because of their personal qualities and without reference to their political views. The confidence of the public in the ombudsman is dependent on his or her being free and independent not only in theory but also in reality. An ombudsman elected by parliament can contribute towards the strengthening of parliamentary control.
78.3. Comment re (iii): The function of an ombudsman involves, inter alia, authorisation to receive and examine individual complaints concerning contended errors or other shortcomings on the part of the administrative authorities, with a view to enhancing the protection of the person concerned in his dealings with those authorities. Within the ombudsmen´s general competence to review the lawfulness and fairness of the administrative acts, they should be empowered to give particular consideration to human rights and fundamental freedoms in the functioning of the administration.
78.4. Comment re (iv) and (v): As a supplement to regular legal institutions and with a function to deal with individual complaints the ombudsmen
should act under informal procedures by, for instance, making inquiries and obtaining whatever information they consider necessary. It is important that the ombudsmen have access to the minutes and other documents of any administrative authority and that authorities which come under supervision should be obliged to provide the ombudsman with information and statements on request. The ombudsmen can also be empowered to be present at the deliberations of an administrative authority. The review must be of exceptional quality and performed in such a way that the institution gains the respect and trust of both society at large and the government, as well as parliament. This is important if the voice of the ombudsman is to be heard. It is also important that the ombudsman’s investigations and pronouncements to promote uniform and proper application of laws and other statutes is easily accessible to civil servants and other interested persons and organs through published reports.
78.5. Comment re (vi): The ombudsman should be vested with the right to initiate investigations and express opinions, especially when questions of human rights are involved, on the way public authorities have handled a case and point out how, in his or her opinion, the matter should have been handled. Many ombudsmen are empowered to conduct investigations on their own initiative. An ombudsman should also be vested with powers to make recommendations aimed at promoting uniform and proper application of legislation and recommend amendments of relevant statutes or any other measure to rectify the matter in one way or another. A general characteristic of the institution is that decisions of the ombudsmen are not directly enforceable and the ombudsmen have no right to issue orders to an authority to act in a certain way. In order for the ombudsmen to carry out their responsibilities efficiently, they should be vested with statutory powers which enable them to establish the actual facts in the case under investigation."
CoE (ed.), The administration and you (2nd edition 2018), p. 49 f.:
"Principle 18 - Non-judicial review
Independent non-judicial bodies shall have the power to review the lawfulness and fairness of administrative decisions.
[...]
Commentary
Independent non-judicial bodies for the purposes of this principle include ombudspersons, parliamentary commissioners, public defenders, mediators, and other similar bodies or persons responsible for reviewing the lawfulness and fairness of decisions taken by public authorities. Their role complements the role of the courts and contributes significantly to the protection of individuals in their relations with public authorities.
In order for these bodies to carry out their role effectively, it is important that they have the power to access all oral and written information (relevant correspondence, minutes of meetings and all other relevant records) they consider necessary held by public authorities. This information will allow them to initiate investigations, establish their own working methods (including informal procedures), give conclusions on individual complaints, express opinions and make recommendations for changes in administrative law and practice. Public authorities are under an obligation to co-operate fully with independent non-judicial bodies. Co-operation, at international level, between ombudspersons, parliamentary commissioners, mediators and persons discharging similar functions is particularly encouraged by the Council of Europe.
It is also crucial to maintain public trust in the integrity, impartiality and effectiveness of these independent bodies which should preferably, at least in the case of the ombudsperson, be elected by parliament. The institution of the ombudsperson (often referred to as a parliamentary ombudsperson where this person has been appointed by parliament) has spread to numerous countries in all parts of the world. Experience shows that the opinions of the ombudsperson do not only influence individual cases, where an individual challenges an administrative act or complains about the conduct of a public official, but may also constitute a major factor in the evolution of general principles and rules governing the functioning of the administration and the conduct of public officials. An ombudsperson elected by parliament can also contribute towards the strengthening of parliamentary control of public authorities."
III. The Pan-European General Principles on Other (Specialised) Institutions of Administrative Oversight
The institutions listed below have in common that they have a specific function of external administrative oversight of compliance with specific 'good administration standards' of relevance for (nearly) every administrative body. An oversight procedure may be prompted by a complaint or information filed by a private person but may also be initiated ex officio. Individual administrative decisions can be the subject of oversight procedures, but the actual task of the oversight authorities is rather the monitoring of compliance of the general administrative practice.
For the issues related to the 'indepence' which is often endowed to these institutions click here.
1. Specialised oversight institutions in the field of data protection
2. Specialised oversight institutions for auditing public procurement
3. Specialised oversight institutions for combatting corruption
1. Specialised oversight institutions in the field of data protection
a) Article 1 of the Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows (ETS No. 181)
"Article 1 - Supervisiory Authorities
1. Each Party shall provide for one or more authorities to be responsible for ensuring compliance with the measures in its domestic law giving effect to the principles stated in Chapters II and III of the Convention and in this Protocol.
2 a. To this end, the said authorities shall have, in particular, powers of investigation and intervention, as well as the power to engage in legal proceedings or bring to the attention of the competent judicial authorities violations of provisions of domestic law giving effect to the principles mentioned in paragraph 1 of Article 1 of this Protocol.
b Each supervisory authority shall hear claims lodged by any person concerning the protection of his/her rights and fundamental freedoms with regard to the processing of personal data within its competence.
3 The supervisory authorities shall exercise their functions in complete independence.
4 Decisions of the supervisory authorities, which give rise to complaints, may be appealed against through the courts.
5. In accordance with the provisions of Chapter IV, and without prejudice to the provisions of Article 13 of the Convention, the supervisory authorities shall co-operate with one another to the extent necessary for the performance of their duties, in particular by exchanging all useful information."
The additional Protocol is signed and ratified by 36 CoE Member States
"7. Article 10 of the [Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108] requires the establishment of appropriate remedies in the
relevant legal provisions of each Party in respect of violations of provisions of domestic law giving effect to the principles of the Convention. However, it does not explicitly require the Parties to establish supervisory authorities to monitor compliance on their territory with the measures giving effect to the principles set forth in Chapters II and III of the Convention and in this Protocol. The first article of this Protocol has in this context a dual aim.
8. It aims to enforce the effective protection of the individual by requiring the Parties to create one or more supervisory authorities that contribute to the protection of the individual’s rights and freedoms with regard to the processing of personal data. More than one authority might be needed to meet the particular circumstances of different legal systems. These authorities may exercise their tasks without prejudice to the competence of legal or other bodies responsible for ensuring respect of domestic law giving effect to the principles of the Convention. The supervisory authorities should have the necessary technical and human resources (lawyers, computer experts) to take prompt, effective action in a person’s favour.
9. The article also aims to achieve improved harmonisation of the rules governing the supervisory authorities already established in respect of Parties to the Convention. In principle, all the Parties to the Convention shall provide in their domestic legislation for the establishment of one or more supervisory authorities. Depending on the national legal system, however, their composition, powers and modus operandi differ considerably from one country to another.
10. The aforementioned harmonisation not only aims at improving the level of data protection in the Parties but also aims at achieving closer co-operation between the Parties, without prejudice to the co-operation system set up by the Convention."
b) Article 15 of "Convention 10" as amended by Article 19 of the Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (CETS No. 223)
The Protocol has not yet entered into force.
"Article 15 – Supervisory authorities
(1) Each Party shall provide for one or more authorities to be responsible for ensuring compliance with the provisions of this Convention.
(2) To this end, such authorities:
a shall have powers of investigation and intervention;
b shall perform the functions relating to transfers of data provided for under Article 14,notably the approval of standardised safeguards;
c shall have powers to issue decisions with respect to violations of the provisions of this Convention and may, in particular, impose administrative sanctions;
d shall have the power to engage in legal proceedings or to bring to the attention of the competent judicial authorities violations of the provisions of this Convention;
e shall promote:
i public awareness of their functions and powers, as well as their activities;
ii public awareness of the rights of data subjects and the exercise of such rights;
iii awareness of controllers and processors of their responsibilities under this Convention;
specific attention shall be given to the data protection rights of children and other vulnerable individuals.
(3) The competent supervisory authorities shall be consulted on proposals for any legislative or administrative measures which provide for the processing of personal data.
(4) Each competent supervisory authority shall deal with requests and complaints lodged by data subjects concerning their data protection rights and shall keep data subjects informed of progress.
(5) The supervisory authorities shall act with complete independence and impartiality in performing their duties and exercising their powers and in doing so shall neither seek nor accept instructions.
(6) Each Party shall ensure that the supervisory authorities are provided with the resources necessary for the effective performance of their functions and exercise of their powers.
(7) Each supervisory authority shall prepare and publish a periodical report outlining its activities.
(8) Members and staff of the supervisory authorities shall be bound by obligations of confidentiality with regard to confidential information to which they have access, or have had access to, in the performance of their duties and exercise of their powers.
(9) Decisions of the supervisory authorities may be subject to appeal through the courts.
(10) The supervisory authorities shall not be competent with respect to processing carried out by bodies when acting in their judicial capacity."
CoE (ed.), The administration and you (1st edition 1996/1997), para. 65 f. (p. 36):
"E – Sanctions and remedies
65. Appropriate sanctions and remedies are required for violations of provisions of domestic law giving effect to the basic principles for data protection set out above.
65.1. Comment: It corresponds to the spirit of Council of Europe Convention No. 108 that there be an independent supervisory body (often called “commissioner for data protection” or similar). Its independence is both with regard to the nomination of its head (often elected by the parliament) and with regard to the rules under which it functions. For the member states of the European Union, the establishment of such an independent supervisory body has become compulsory with the adoption, on 24 October 1995, of the Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data."
p. 189: "Independent supervision is an essential component of European data protection law. Both EU and CoE law view the existence of independent supervisory authorities as indispensable for the effective protection of the individuals’ rights and freedoms regarding the processing of their personal data. As data processing is now ever-present and increasingly complex for individuals to understand, these authorities are the watchdogs of the digital age. In the EU, the existence of independent supervisory authorities is considered one of the most essential elements of the right to the protection of personal data, enshrined in primary EU law. Article 8 (3) of the EU Charter of Fundamental Rights and Article 16 (2) of the TFEU recognise the protection of personal data as a fundamental right and affirm that compliance with data protection rules must be subject to control by an independent authority."
2. Specialised oversight institutions for auditing public procurement
b) Article 9 (2) of the United Nations Convention against Corruption
a) Guiding principle 14 of the Resolution (97) 24 on the twenty guiding principles for the fight against corruption
Guiding principle 14 of Resolution (97) 24 on the twenty guiding principles for the fight against corruption: "The Committee of Ministers [...] agrees [...] to adopt appropriately transparent procedures for public procurement that promote fair competition and deter corruptors."
Resolution 97(24) was prepared by CoE's 'Multidisciplinary Group on Corruption (GMC)' (cf. GMC's Activity Report (1994-2000) (CM(2000)158) 27 October 2000).
In 1997, the 2nd Conference of Specialised Services in the fight against corruption was organised in Tallinn to deal with the subject "Corruption in Public Procurement". At the close of the Conference the participants adopted 17 conclusions, which appear as Appendix II to the GMC's Activity Report (1994-2000), CM(2000)158 (Restricted) 27 October 2000. Concerning public procurement procedures the participants concluded as follows:
"2. Public procurement procedures should be cost-efficient, fair and impartial, transparent and efficient. They should render corruption as difficult as possible, facilitate detection and pay particular attention to specific vulnerable points. In particular:
a) [...]
g) independent commissions should be established to review the correctness of public procurement procedures; bidders and other interested persons should be entitled to file complaints before such commissions,
h) public administrations should provide adequate external and internal control mechanisms and auditing procedures. Among the services responsible for these controls and procedures sharing of information and co-ordination is essential."
b) Article 9 (2) of the United Nations Convention against Corruption
The United Nations Convention against Corruption has been signed and ratified by all CoE Member States and the EU. This Convention therefore does not "only" reflect global standards in the fight against corruption, but is a legally binding instrument in the entire "European administrative area" (and can therefore also concretise the pan-European general principles of good administration).
As part of Chapter II on 'Preventive measures" Article 9 (2) of the United Nations Convention against Corruption stipulates:
"Article 9 - Public procurement and management of public finances
(1) [...].
(2) Each State Party shall, in accordance with the fundamental principles of its legal system, take appropriate measures to promote transparency and accountability in the management of public finances. Such measures shall encompass, inter alia:
(a) [...]
(b) [...]
(c) A system of accounting and auditing standards and related oversight;
(d) Effective and efficient systems of risk management and internal control; and
(e) Where appropriate, corrective action in the case of failure to comply with the requirements established in this paragraph.
(3) [...]."
See on Article 9 (2) of the United Nations Convention against Corruption para. 69 ff. of the Legislative Guide for the Implementation of the United Nations Convention against Corruption and pp. 85 ff. and pp. 105 ff. of the Travaux Préparatoires; for Article 9 (1) of the United Nations Convention against Corruption click here. See furthermore Y. Marique, 'Article 9: Public Procurement and Management of Public Finance' in C. Rose, M. Kubiciel and O. Landwehr (eds.), The United Nations Convention Against Corruption - A Commentary (2019), pp. 91 - 105
3. Specialised oversight institutions for combatting corruption
Click here for the relation of this item with the pan-European general principles on the status of public officials
b) Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016
a) Resolution 97(24) of the Committee of Ministers of the Council of Europe on the twenty guiding principles for the fight against corruption
"The Committee of Ministers [...]
Having received the draft 20 guiding principles for the fight against corruption, elaborated by the Multidisciplinary Group on Corruption (GMC);
Firmly resolved to fight corruption by joining the efforts of our countries,
agrees to adopt the 20 guiding principles for the fight against corruption set out below:
1. [...]
3. to ensure that those in charge of the prevention, investigation, prosecution and adjudication of corruption offences enjoy the independence and autonomy appropriate to their functions, are free from improper influence and have effective means for gathering evidence, protecting the persons who help the authorities in combating corruption and preserving the confidentiality of investigations; [....]
7. to promote the specialisation of persons or bodies in charge of fighting corruption and to provide them with appropriate means and training to perform their tasks;
[...].
Resolution 97(24) was prepared by CoE's 'Multidisciplinary Group on Corruption (GMC)' (cf. GMC's Activity Report (1994-2000) (CM(2000)158) 27 October 2000).
Guiding principle 3 and 6 were object of GRECO's First evaluation round on "independence, specialisation and means available to national bodies engaged in the prevention and fight against corruption" launched on 1st January 2000.
b) Venice Commission, Rule of Law Checklist (CDL-AD(2016)007) of 18 March 2016
"F. Examples of particular challenges to the Rule of Law
[...].
1. Corruption139 and conflict of interests
a. [...]
c. Effective compliance with, and implementation of preventive and repressive measuresHow is effective compliance with the above measures ensured?
i. [...].
ii. [...].
iii. Are the bodies responsible for combating corruption and preserving public sector integrity provided with adequate resources, including investigative powers, personnel and financial support? Do these bodies enjoy sufficient operational independence from the executive and the legislature?140
iv. Are measures in place to make the above bodies accessible to individuals and to encourage disclosure of possible corrupt acts, notably reporting hotlines and a policy on whistle-blowers141 which offers protection against retaliation in the workplace and other negative consequences?
v. Does the State itself assess the effectiveness of its anti-corruption policies, and is adequate corrective action taken when necessary?"
Footnote 139: On the issue of corruption, see Group of States Against Corruption (GRECO), Immunities of public officials as possible obstacles in the fight against corruption, in Lessons learned from the three Evaluation Rounds (2000-2010) - Thematic Articles.
Footnote 140: On the issue of corruption in the judiciary, see II.E.1.c.ii.
Footnote 141: See Recommendation CM/Rec(2014)7 on the protection of whistle-blowers, of the Council of Europe’s Committee of Ministers.
IV. The Pan-European General Principles on Mediation in Administrative Disputes
1. Recommendation Rec (2001)9 of the Committee of Ministers to member states on alternatives to litigation between administrative authorities and private parties
Conciliation and mediation
- can be initiated by the parties concerned, by a judge or be made compulsory by law (Appendix, principle III 2)
- should guarantee fair proceedings allowing in particular for the respect of the rights of the parties and the principle of equality (Appendix, principle I 3 c);
Conciliators and mediators
- have to be idependent and impartial (Appendix, principle I 3 ii b)
- should arrange meetings with each party individually or simultaneously in order to reach a solution (Appendix, principle III 2 ii).
- can invite an administrative authority to repeal, withdraw or modify an act on grounds of expediency or legality (Appendix, principle III 2 iIi).
Explanatory memorandum (drafted by the European Committee on Legal Co-operation (CDCJ) - CM(2001)121 Addendum I) 3 August 2001):
"37. For the purposes of the recommendation, terms are defined as follows:
38. [...].
40. Conciliation: a non-judicial procedure involving a third party which aims to bring the parties to a mutually acceptable solution;
41. Depending on the case, conciliation may result in a negotiated settlement between the parties (see below) or in a unilateral act taken by the administrative authority, such as the withdrawal of the contested act.
42. Mediation: a non-judicial procedure involving a third party who proposes a solution to the dispute in the form of a non-binding opinion or recommendation.
43. The terms conciliation and mediation are not understood in the same way in the various member States of the Council of Europe and some of them do not make a distinction between the two. Yet, it was considered useful to highlight the distinction between the two notions and in this connection retained the above definitions for the purposes of the recommendation [...].
44. Like conciliation, mediation may result in a negotiated settlement between the parties or in an unilateral act taken by the administrative authority. In some countries, no differentiation is made between conciliation and mediation.
[...].
92. Where conciliation and mediation are concerned, the final outcome remains the responsibility of the parties; the expression of their will is what ordains the adoption of this solution.
93. The appendix defines the framework in which conciliation and mediation can operate in administrative litigation. These two means are prevalent in matters concerning the administration's discretionary power, and are not aimed as a rule at determining the legality of administrative acts, which is a matter for the courts. However, it may incidentally be required of mediators or conciliators to assess the legality of a given act. The use of conciliation or mediation can also be considered in connection with the administration's obligation to apply the law without exercising discretion. An example is the occupation of the administration's public property by demonstrators, a case in which a conciliation procedure could convince the demonstrators to leave the premises. Likewise, conciliation can be considered in tax matters, another area in which the authorities are required to apply the law without exercising discretion.
94. Conciliators and mediators may be individual or plural (a board) and must be impartial, independent, committed to their role and proficient in human relations, and combine power of persuasion with communication skills. In addition, they are required to have certain professional qualifications: knowledge of laws and regulations relating to administrative and disputes procedure, and of the methods and practices of negotiation. Lastly, they must be suitably trained.
95. The appendix further points out that a conciliation or mediation procedure can follow from a request by the parties concerned - the most frequent instance - or be proposed by a judge or required by law. The authority to which the dispute is referred may be the actual conciliator or mediator, the board or the administrative department concerned by the contentious issue.
96. During the preparatory work the possible relationship between a conciliation or mediation procedure and simultaneous proceedings before the courts was considered. It was pointed out that where such a procedure took place at the request of a court, as part of the actual court proceedings, it was not covered by the CJ-DA's terms of reference and was to be regulated by the Code of Procedure.
97. After obtaining the requisite information from the parties, the conciliator or mediator meets either with both parties together or with each individually. These meetings enable the parties to engage in discussions moderated and conducted by the conciliator or mediator and are confidential when held individually.
98. The conciliator's responsibility is accordingly to help the parties in an administrative dispute arrive at an agreement to sink their differences. The conciliator clarifies the dispute, encourages the parties to discover points of agreement and, if they cannot, makes suggestions. At the conclusion of the procedure, a final report is drawn up by the conciliator who helps the parties frame their agreement, in the form of a contract.
99. In a mediation process, on the other hand, the mediator is expected to propose solutions for resolving the dispute. Mediation normally leads to recommendations made by the mediator or to a reasoned proposal for the settlement of the dispute. Since mediation does not impose a forced solution, its outcome often takes the form of a compromise or negotiated settlement.
100. The appendix points out that conciliators and mediators cannot set aside administrative acts. If they consider that an act is illegal or not expedient, they must attempt to persuade the administrative authorities to withdraw it. During the preparatory work the effect a successful conciliation or mediation procedure might have on the reasons given for the disputed administrative act, and particularly the question of whether the administration's acceptance of a solution achieved by this means could suffice to satisfy the obligation to give reasons for the act was considered. In the end, it was decided not to mention this possibility because a conciliation or mediation procedure is not binding on third parties."
Click here for further information on the genesis of Recommendation Rec (2001)9.
2. European Commission for Efficiency of Justice (CEPEJ), Promoting mediation to resolve administrative disputes in Council of Europe member states (CEPEJ(2022)11 of 7 december 2022)
CEPEJ(2022)11 of 7 december 2022 builds on European Commission for Efficiency of Justice (CEPEJ), Guidelines for a better implementation of the existing Recommendation on alternatives to litigation between administrative authorities and private parties (CEPEJ(2007)15 of 7 December 2007)
"Definition and principles
- Mediation is a structured and confidential process in which an impartial third person assists the parties by facilitating the communication between them for the purpose of resolving the issues in dispute [...].
- Mediation may concern an administrative dispute, or a dispute of an administrative nature between administrative authorities and private persons or public officials, the settlement of which is, in principle but not necessarily, the responsibility of the judge competent to settle administrative disputes.
- Administrative mediation can take three forms: institutional mediation, conventional mediation and jurisdictional or para-jurisdictional mediation.
- Institutional mediation is a process conducted by an institutional mediator, usually from the administration or with the status of an ombudsman. It allows for the resolution of a very wide range of disputes, which are not limited to administrative disputes in the strict sense of the term (those whose resolution is the responsibility of a court). It can be used to settle disputes arising from "maladministration".
- Conventional mediation happens when, in order to find a solution to their dispute, the parties agree to request a third-party mediator to help them find a solution to their dispute.
- Jurisdictional or para-jurisdictional mediation takes place within the framework of a lawsuit to resolve an administrative dispute. In such cases, the court has already been seized but the parties decide, either by themselves or at the invitation of the judge, to attempt mediation. Court proceedings are then interrupted to make room for the mediation process.
- Whatever the form of mediation, the mediator is always an independent third person in relation to the parties. They must be impartial. They must have both legal and technical expertise in the resolution of the conflict in question. They must conduct the procedure within a limited timeframe and respect the principle of confidentiality. The process relies on the goodwill of the parties and once it has begun, their freedom to leave it at any time must be protected. Mediation succeeds when the parties agree on an acceptable solution, thus resolving the dispute or difference.
- The mediation process concerns all types of disputes and is not specific to the resolution of administrative disputes. Nonetheless, it appears to be particularly well suited to the resolution of some of them. The actors concerned must be well aware of this, however. The promotion of administrative mediation must allow it to free itself from civil mediation in order to take into account the specificity of the matter it deals with."
CEPEJ(2022)11 of 7 december 2022 contains furthermore
- an outline on the benefits of mediation in disputes
- measures that a state can take to promote the the use of administrative mediation
- an Annex with "Examples of good practices" with regard to the availiablity, accessability and awareness of mediation in administrative disputes