A Historical Perspective on Administrative Jurisdiction in Latin America: Continental European Tradition versus U.S. Influence
Artikel-Kategorie: Research Article
Online veröffentlicht: 26. Mai 2016
Seitenbereich: 241 - 289
DOI: https://doi.org/10.1515/bjals-2016-0008
Schlüsselwörter
© Ricardo Perlingeiro, licensee De Gruyter Open
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
The boom in public-law conflicts in Brazilian courts(1)(2) has been associated with an identity crisis in its model of administrative justice(3), which bears traces of the U.S. legal system even though it is discordant with the Brazilian culture of administrative law, which is still tied to the French and German models in many respects.(4) on that subject, Rivero warned that “even in those aspects in which Anglo-Saxon influence reaches its high point in Latin-American administrative law, it does not appear to extend to legal technique: the sources, categories and methods of reasoning remain the same as those of Continental European law, with few exceptions”.(5)
In early 19th-Century Europe, many considered administrative jurisdiction to be an attribute of the Executive Branch itself, inherent in its power of “
In the United States, on the other hand, with the development of its unified traditional judicial system (generalized courts), the tendency is to divide the exercise of the administrative jurisdictional activities between the Executive and the Judiciary, not as in the beginnings of European administrative justice(7) but rather based on a model in which administrative decisions are made by authorities who have a certain degree of independence (
This culture of common law in Latin America, without prior contextualization, creates a risk of driving the model of administrative justice to either of two extremes: on the one hand, duplicate jurisdictions, with public authorities and courts which have similar independence, specialisation and broad powers of review, resulting in higher costs, uncertainty and delays in conflict resolution; on the other, an absence of jurisdiction, since administrative authorities that lack independence and are therefore incapable of ensuring a fair non-judicial administrative proceeding co-exist with non specialised courts that choose to defer to the technical expertise and regulatory power of the authorities or else, with the same practical effect of such “administrative deference”, opt to decide the case themselves even without the proper expertise to try to subject matter
In either case, the administrative authorities and courts may weaken themselves as jurisdictional bodies, especially from the standpoint of their reliability vis-à-vis one another and in the eyes of the private claimants.
The Brazilian model tends towards the absence of jurisdiction: with the advent of the Republic, in 1891, under the avowed influence of U.S. constitutionalism an undivided judicial system was set up for both the administrative jurisdiction and ordinary jurisdiction (generalized courts), which still remains in effect today; moreover, the 1988 Constitution raised (non-judicial) administrative due process of law to the category of a fundamental right, making it a prerequisite for administrative decisions restricting individual rights.
Since the public administrative authorities lack prerogatives to settle conflicts with effective independence, however, the Judiciary is being asked to perform increasingly intense judicial review in its supervision of administrative actions. This results in widespread frustration: on the one hand, with courts that defer to the authorities (as is typical of the U.S. model with its
one puzzling example in Brazil is the need for judicial intervention in order to enforce decisions by the tax authorities. There are approximately 25 million tax enforcement claims in progress, representing 40% of the judicial proceedings in progress in the nation.(9) In fact, the Brazilian legal community has the general impression that the public administrative authorities are not empowered to initiate acts of enforcement for their decisions for their own account or even to conduct fair proceedings that result in restrictive decisions, especially in the states and municipalities of inland Brazil where, besides lacking independence, the tax officials do not always have legal expertise.
Paradoxically, however, it is feared that “dejudicialising” tax enforcement claims would increase the number of judicial conflicts, so great is the possibility of administrative errors; it is therefore thought better for the enforcement action to be carried out
In Germany, tax decisions are enforced by the tax authorities themselves.(11) The high degree of credibility of the German public administrative authorities, inherited from Prussian professionalism,(12) gives people a feeling of impartiality even without prerogatives guaranteeing effective independence, so that, in practice, the specialised judges, despite their broad powers, are not often called upon to exercise them. The reality of the German model of administrative justice demonstrates that the Continental-European system is not synonymous with excessive judicial review, which, on the contrary, is a symptom of debilitated public administrative authorities; such weakness might be aggravated if other countries adopted models of administrative justice without making the necessary adjustments to their own specific cultural reality.
This article will try to show that episodic influence of U.S. constitutionalism in Latin American countries in the wake of their republican independence movements in the 19th Century led the majority of the new nations (e.g., Brazil) to a system of unified jurisdiction in the Judiciary (monist system), breaking off from its origins in Continental Europe, which adhered to a dualist judicial model in which the administrative jurisdiction is structured separately from the jurisdiction over private law.
Moreover, in the same way that Brazil can be criticised for ignoring the new version of the French
Against that backdrop, the purpose of this study is explore topics inherent in the basic structure of a model of administrative justice (13) as a basis for analysing the evolution from the 19th to 21st Centuries of administrative justice systems in the Latin American States,(14) comparing their experiences, recent changes, oscillations and established tendencies in a search for a new direction: should we reconcile ourselves to the Continental-European model, approximate the evolution in the US model, or else start building the identity of a specific model of our own?(15)
According to Cassagne, there has been a misinterpretation of the scope of the constitutional sources and their historical bases: he argues that the system of unified jurisdiction in Latin America is mistakenly associated with the U.S. model, whereas in fact the
Nevertheless, it is quite likely that the liberal ideas of
The The Executive Branch shall not hear any judicial cases or attend to any lawsuits, whether pending or closed, nor order any trials to be re-opened, nor change the system of administration of justice, nor hear the cases of higher or lower magistrates or other subordinate judges and civil servants, which cases shall be reserved for the Tribunal de la Real Audiencia or Comisión, which, where appropriate, shall appoint the Junta Conservadora.
It is worth pointing out the origin in the U.S. of the […] The Secretary of the Government Junta, Mariano Moreno, did a translation of the US Constitution of 1787, to which he made some changes in the numbering and contents. Certain authors consider that study to be a sort of rough draft of the constitution [..] On 18 December 1810, the First Junta interpreted the Reglamento of 25 May and decided that it should also include parliamentary representatives from the inland areas of the Vice-Regency. When the number of its members reached twenty-two in 1811, it changed its name to Conservative Junta (i.and., conserving the rights of Fernando VII), more commonly known as the Second Junta or Junta Grande. [...].(20)
If that thesis is correct, Moreno’s work may be considered the first organic constitutional initiative of the Republic of Argentina.(21)
In fact, the above-cited Article 243 of the Constitution of Cadiz (according to which neither the
However, the use of the expression “civil and criminal courts” in Article 242 makes it clear that the focus of the provisions is not on preventing administrative dispute resolution by the Executive Branch; rather, the Executive was not supposed to interfere with functions of the Judiciary which, at the time, outside of criminal law, were mainly associated with jurisdiction over private-law cases (even if the public administrative authorities were involved in them), rather than constituting an administrative jurisdiction per se.
Rivero interprets the expression
In that respect, the notion of “civil rights and obligations”, as expressed in Article 6 of the European Convention on Human Rights, has always been controversial in the European Court of Human Rights. A draft protocol has been proposed, rewording Article 6 to extend its scope to include any public law issues, but no consensus was reached. This restriction, however, it must be said, is not found in the American Convention on Human Rights, Article 8 of which provides that the guarantees of due process of law are applicable to “rights and obligations of a civil, labor, fiscal, or any other nature”.(29)
A good deal light is shed on this subject by Article 9 of the
What was considered to be a governmental issue and administrative issue is close to what would now be an
From that point of view, the Spanish Constitution of 1812 was not contrary to the French Law of 16 and 24 August 1790 (
It is true that the Constitution of Cadiz prohibited the performance of judicial functions by the Executive but its most relevant contribution was that it helped create an administrative jurisdiction in Spain in 1888 (
In this context, the new jurisdictional functions of the Spanish State, now specialised, and the administrative jurisdiction in the judicial sphere, in general, like that of the
In the opinion of Rivero, who recognises the origin of the system of unified jurisdiction over civil and administrative cases in Anglo-Saxon law, the source of inspiration of the Latin-American countries that have consecrated and maintained judicial unity was the Belgian Constitution of 1831. It is true that the laws and Constitution of Belgium did not escape the attention of the Latin-American authors of the period;(38) but it was really the English and U.S. systems that they often cited, considering them to be more appropriate to liberalism, as a counterpoint to the French model of administrative justice that allowed the public administrative authorities to judge themselves.(39)
In fact, in the first half of the 19th Century, in the countries of Hispanic origin and in Brazil, with the advent of its Republic in 1889, the debate that arose in Latin America concerned the lack of independence of French administrative litigation
Margáin Manautou, for examples, recalls that:
the historical background of administrative litigation in Mexico dates back to the Law for the Settlement of Administrative Disputes [Ley para el Arreglo de lo contencioso administrativo] of 25 May 1853, which was influenced by contemporary French legislation, especially the notion of a Council of State - and which had caused a great uproar in the Mexican legal community, so that it was soon declared unconstitutional by the Mexican Supreme Court, which held that it violated the doctrine of Separation of Powers.(41)
In the latter half of the 19th Century this debate was becoming obsolete in France and Germany because of the recognition that the administrative jurisdiction could be exercised if it were autonomous from the public administrative authorities even if such jurisdiction is not located in the Judiciary, on the model of the
Taking the example of Brazil, the adoption of the unified judicial system by the Republican Constitution of 1891 is associated with a purely political choice in favour of US liberal constitutionalism, in opposition to the monarchic Brazilian institutions of the time, striking examples of which were the Imperial Council of State and administrative litigation under the system of
The doctrine of administrative law of the latter half of the 19th Century continued to support the version originating in the French Council of State when they favoured backing the Brazilian Constitution of 1824, considering the Judiciary as a power intended for private law and the Executive as a power intended for public law.(45) The reaction shown by the Republic Constituent Assembly of 1891 in adopting the unified judicial system is therefore understandable.
It is true that in the late 19th Century, there were no reasons for Latin America to distance itself from the European model of administrative justice; at the time, it seemed clear that the prohibition of exercise of jurisdiction by the Executive, as enshrined in the Constitution of Cadiz, would not prevent the Latin-American systems from keeping up with the evolution of the French model towards an autonomous administrative jurisdiction. The proof of that is what happened throughout Europe, especially in Spain and Portugal, and above all in Belgium, which abandoned the monist judicial system and where the Council of State exercised administrative jurisdiction without the possibility of appeal.(46)
It fact, in early 19th Century Latin America, the rise of an essentially judicial jurisdiction became apparent, which, however, gradually become more or less specialised as a sign of reconciliation with its European origin; starting from the early 20th Century, certain Latin-American Constitutions began recognising the dualist judicial model of jurisdiction, with one jurisdiction specialised in administrative law and others with a non-judicial administrative jurisdiction.
The judicial system that prevailed in Latin America during the 19th Century, after the independence movements between 1810 and 1831, was not accompanied by an invasive administrative jurisdiction; it tended to restrict itself to examining to disputes (
– in a judicial model more closely identified with the United States than with Continental Europe.
19th-Century Latin America practically did not recognise any administrative jurisdiction in the judicial sphere, as in Belgian law (1831) and German law (1863); nor did it recognise any administrative jurisdiction in the Executive sphere, like French law (1872) and Spanish law (1874). Out of the 19 Latin-American countries of Iberian origin, only four deviated from the judicial system in the 19th Century, opting instead for autonomous tribunals outside the structure of the Judiciary, although they subsequently back down from their decision: Bolivia (1861-1868, 1871-1878), Panama (1863-1904), Dominican Republic (1874-1880) and Colombia (1886-1914).
The system of unified jurisdiction over civil and administrative cases in Latin America offered no more than the French administrative litigation of the early 19th Century, because the Executive itself settled the constant disputes about which – quite numerous – issues would be reserved exclusively for the public administrative authorities and immune from the Judiciary (“governmental” issues), as may be observed in the Chilean Constitution of 1833 and Ecuadoran Constitution of 1843.(47) It was a judicial system that, in most Latin-American countries, had a restricted field of action, as occurred in Anglo-Saxon law; in that respect the system did not evolve much either in the United States or in the Latin-American countries that still make use of it.
The fact is that the so-called
Thus, the origin of the system of undivided jurisdiction or, according to Fromont, of the system of
The Continental-European model of single-jurisdiction evolved as administrative law became more firmly established; the Judiciary became increasingly specialised, autonomous non-judicial bodies were created, such as the
In this context, the regulatory gap left by the monist judicial system, with quasi
The creation of the Interstate Commerce Commission (ICC) in 1887 in the United States marked the beginning of the administrative tribunals, a combination of the unified judicial model with adversarial proceedings in the area of public administrative authorities.(53) However, that aspect of the U.S. system, which was not well established until the 20th Century, was never considered by 19th Century Latin America, for obvious reasons.
An irony of history is involved in the evolution of
In Latin America, the only case of a hybrid model of administrative jurisdiction, as in common law countries, was provided for by the Constitution of Honduras of 1965,(58) with the specialisation of an administrative chamber in the supreme court,(59) as well as the creation of an Administrative Tribunal, which, pursuant to Article 210, did not form part of the Judiciary: the non-judicial tribunal exercised administrative jurisdiction and was subject to review by a supreme court through cassation.(60)
The Seventh Amendment of 1977 to the Brazilian Constitution of 1969 provided for the possibility of legislators instituting non-judicial administrative litigation which would be subject to judicial supervision, as in contemporary U.S. judicial review, but it never became well established in practice.(61)
In the 19th Century, as mentioned above, Bolivia (1861-1868, 1871-1878), Panama (1863-1904), the Dominican Republic (1874-1880) and Colombia (1886-1914) experimented with an administrative tribunal that was autonomous from the Judiciary, and, in the 20th Century, it was the turn of Guatemala (1927-1945), Ecuador (1929-1979) and, once again, Panama (1945-1956).
Bolivian administrative law recognised a Council of State, conceived of as a body outside the Judiciary, accompanied by Supreme Administrative Court, which exercised administrative jurisdiction (
In Panama, the
The Dominican Republic formed a non-judicial administrative jurisdiction within the Legislative Branch, during the effective period of the Constitutions of 1874(72), 1878(73) and 1879(74). The Colombian Constitution of 1886 included among the powers of the Council of State, which at the time was a non-judicial body, jurisdiction to rule on administrative litigation, as an undivided level of authority or on the appellate level, in accordance with the law, and also authorised legislators to create tribunals with jurisdiction over administrative disputes involving questions specific to the
Starting from the constitutional reforms in Guatemala of 1927(76) and 1935(77), a distinction was drawn between the cases (conflicts) to which the public administrative authorities are a party, maintaining the authority of the ordinary judges, and
The Ecuadoran Constitution of 1929 established the authority of the Council of State – a non-judicial body – to provide the jurisdiction over administrative disputes on an undivided level of court(78); the 1945 Constitution provided for the
In modern-day Latin America, there are only two examples of nonjudicial administrative jurisdiction: Uruguay, with its
The Uruguayan Constitution of 1934(82) established an Administrative Tribunal [
According to Article 73 XXIX of current Mexican Constitution of 1917, after subsequently (most recently on 4 December 2006), the Legislative Branch is authorised:
to issue laws establishing administrative tribunal that are granted full autonomy to render their decisions and that are in charge of settling disputes arising between individuals and the federal administrative authorities, and to impose penalties on public servants for such administrative offences as are prescribed by law, establishing the rules for their organization, operations, procedures and appeals against their decisions.
The Mexican Administrative Tribunal for Tax Matters (
In 1984, the President of the Federal Republic of Brazil sent a message to the National Congress proposing the creation of an administrative (nonjudicial) tribunal for litigation which, in reality, implied solely non-judicial administrative jurisdiction without the possibility of subsequent judicial review. The proposal was not approved however, in light of the severe criticism from the legal community.(91)
The dualist system of judicial jurisdiction with a specific supreme court, as is currently found in Germany and Portugal, was incorporated into the territory of Latin America only by Colombia, where it has been in force since 1914. Despite its name of
The Legislative Act No. 3 (Constitutional Amendment) of 1910 modified Title XV of the Colombian Constitution of 1886, on the administration of justice(92), and established an institution specialising in jurisdiction over administrative disputes. The Reform Act (Constitutional Amendment) of 1914(93) assigned to the Council of State the function of Supreme Court of administrative litigation. Finally, in the Constitution of 1991, the Council of State is maintained as a body of the
A dualist system of judicial jurisdiction with an undivided Supreme Court was established constitutionally in the following countries of Latin America: Nicaragua, in the periods from 1939 to 1948, with courts and judges for administrative disputes,(95) and from 1974 to 1979, with the Administrative Court [
The monist judicial system was the only that all the Latin-American countries had an opportunity to experience at a certain moment of their constitutional history. Some of them did so uninterruptedly from the start of the effective period of their Republican Constitution, as occurred in Chile, Argentina and Venezuela since 1811; in Paraguay since 1813, México, 1818; Costa Rica, 1821; Peru, 1823; El Salvador, 1824; Cuba, 1869; and Brazil, 1891.
The history of the Chilean Judiciary is characterised by a judicial system of monist jurisdiction in the Constitutions of 1811, 1818, 1822, 1823, 1828, 1833, 1925 and 1980. (102) In Argentina, in the absence of an explicit reference to a specialised court in its constitutions, it must be concluded that Argentine law established a monist judicial system, as can be observed in the Constitutions of 1811, 1813, 1815, 1816, 1817, 1819, 1826, 1856, 1860, 1942 and 1994. Venezuelan law adopted a monist judicial system in the Constitutions of 1811, 1819, 1821, 1830, 1858, 1874, 1901, 1909, 1931, 1945, 1947, 1953, 1961 and 1999.(103)
Paraguay adopted the monist judicial system.(104) Although the Charters of 1813 and 1844 do not lay down any rules in that respect, starting from the Constitution of 1870,(105) a jurisdiction for administrative disputes was expressly established as an exclusive attribute of the Judiciary, to the exclusion of the Executive. The same rule was incorporated into the subsequent Constitutions, which also authorised the Congress to legislate on administrative disputes: Constitution of 1940;(106) Constitution of 1967;(107) Constitution of 1992(108).
In Mexico, the judicial system of monist jurisdiction has been the framework up to the present day: it was implicitly established in the Constitutions of 1818, 1824, 1836, 1857 and 1917.(109) In Costa Rican constitutional law, there was not an undivided exception to the judicial system of monist jurisdiction throughout the effective period of its 14 Constitutions: 1821, 1823 (Constitutions of 17 March 1823 and 16 May 1823), 1824, 1825 (with the amendment of 1835), 1844, 1847, 1848, 1859, 1869, 1871, 1917, and 1949.
Peruvian constitutional law anchored the judicial system of monist jurisdiction from its first Constitution, in 1823, and it was maintained by the Constitutions of 1828, 1834, 1837, 1839, 1856, 1860, 1867, 1920, 1933, 1979 and 1993; it should be pointed out the Constitution of 1867 called for the creation by law of
The Constitutions of El Salvador of 1824, 1841, 1864, 1871, 1872, 1883 and 1886 ommitted any mention of administrative litigation, which resulted in a judicial system of monist jurisdiction; starting from the Constitution of 1939(111), the constituent assemblies authorised the legislators to organise a jurisdiction linked to the Judiciary that included administrative matters: Constitutions of 1944(112), 1950(113), 1962(114) and 1983(115).
In Cuba, only two of its Constitutions expressly refer to the jurisdiction over administrative disputes as a function of the ordinary courts (Constitutions of 1934(116) and of 1935(117)); the others failed to mention any body as having the authority to rule on such conflicts, so that Cuba, too, is considered to have established the judicial system of monist jurisdiction: Constitutions of 1869, 1878, 1895, 1897, 1901, 1940, 1952, 1959, 1976 (with the amendment of 1992 and 2002). In Brazil, the Constitutions that followed the proclamation of the Republic, those of 1891, 1934, 1937, 1945, 1967, 1969 and 1988, all adopted the judicial system of monist jurisdiction.
Colombia (1821-1886), Guatemala (1824-1927) and the Dominican Republic (1854-1874, 1880-2010) experienced the undivided judicial system for a limited period of time.
The Colombian Constitutions of 1821, 1830, 1832, 1843, 1853, 1858 and 1863 do not refer to administrative litigation, which suggests that the Judiciary, in that period, exercised an undivided jurisdiction, including, within its area of authority, jurisdiction over conflicts of public interest involving the administrative authorities. The Constitution of 1830,(118) in particular, established the authority of the High Court of Justice to try any case involving contracts or transactions with the Executive Branch, which confirms the existence of a judicial system of monist jurisdiction that is inclined to settle private law disputes with public administrative authorities, while excluding from judicial evaluation matters of administrative law, which are considered to fall exclusively within the scope of the Executive. That rule was maintained with minor alterations in the Constitutions of 1832,(119) 1858(120) and 1863.(121)
In Guatemala, the Constitutions of 1824, 1825, 1879 and 1921 do not establish any specific body with the authority to rule on conflicts involving the administrative authorities; it is therefore presumed to have a system of undivided jurisdiction system; the Constitution of 1839 refers to administrative litigation matters as one of the subject areas under the authority of the courts.(122)
In the Dominican Republic, the monist judicial jurisdiction, generally concentrated in the Supreme Court, predominated through much of its constitutional history (Constitutions of 27 February 1854,(123) 10 December 1854,(124) 1858, 1865,(125) 1866,(126) 1872,(127) 1877, 1880,(128) 1881,(129) 1887,(130) 1884,(131) 1896,(132) 1906,(133) 1908, 1924, 1934, 1942, 1955, 1960, 1961, 1963, 1966, 1994 and 2002); the only exception was in the effective period of the Constitutions of 1874,(134) 1878,(135) and 1879,(136) with a non-judicial administrative jurisdiction, and after the Constitution of 2010,(137) with a dualist judicial jurisdiction.
Another group of countries initiated the Republic with the monist judicial system and then searched for a different model of administrative jurisdiction, subsequently returning to the original system: Nicaragua (1884-1939, 1948-1974, 1979-), Honduras (1825-1965, 1982-), Ecuador (1830-1929, 1992-), Panama (1841-1863, 1904-) and Bolivia (1826-1861, 1878-).(138)
In Nicaragua, the monist judicial system was in effect in the Constitutions of the years 1884,(139) 1826, 1838, 1842, 1848, 1854, 1858, 1893 (until the advent of the Constitution of 1898), 1905, 1911, 1912, 1913 (until the advent of the Constitution of 1939), 1948, 1950 (until the advent of the Constitution of 1974), 1979, 1987, 1995 (Constitutional Amendment, providing for a specialisation in administrative litigation within the Supreme Court) (140) and 2014 (Constitutional Amendment, granting the Supreme Court jurisdiction over administrative litigation) (141).
The judicial system of monist jurisdiction was in force in the Constitutions of Honduras of 1825, 1831, 1839, 1848, 1865, 1873, 1880, 1894, 1904, 1924, 1936, 1957 and 1982, which were silent about administrative litigation; the only exception was the Constitution of 1965, which instituted a court that was autonomous vis-à-vis the Judiciary.(142)
In Ecuador, the Constitutions of 1830, 1835, 1843, 1851, 1852, 1861, 1869, 1878, 1884, 1897 and 1906 provided general rules about the Judiciary but without any mention of the state bodies responsible for administrative dispute resolution. Such silence was no doubt motivated by the desire of the constituent assembly to set up a judicial system of monist jurisdiction to resolve issues involving administrative authorities a system which remained in effect until the advent of the Constitution of 1929.
The Constitutional Amendment of 1992 established that administrative litigation is to be ruled on by a judicial body to be defined by law and that the Supreme Court will have the authority to deliver a final binding judgement in case of appeals from lower courts, as confirmed by the Constitution of 1998(143): the monist judicial system was re-established in Ecuador in light of the Constitution. With the same orientation, the Constitution of 2008 stipulated that the acts of public powers could be challenged in administrative and judicial fora, and prohibited the Executive and Legislative Branches from exercising jurisdictional functions. (144)
In Panama, the judicial system of monist jurisdiction prevailed in the period from 1841 to 1863 (Constitutions of 1841(145), 1853 and 1855), from 1904 to 1941 (Constitution of 1904, until the advent of the Constitution of 1941); starting from the Constitutional Amendment of 1956,(146) jurisdiction over administrative litigation was indicated as one of the functions of the Supreme Court (Constitution of 1972(147) and the Amendments of 1983(148) and 2004(149).
In Bolivia, administrative jurisdiction was exercised by a unified judicial system throughout most of its constitutional history, during the effective periods of the Constitutions of 1826, 1831, 1834, 1839, 1843, 1851, 1868, 1878, 1880, 1938, 1945, 1947, 1967, 1994, 2004, 2008 and 2009. A system of non-judicial administrative jurisdiction was found only under the Constitutions of 1868 and 1871. In the Constitution of 2004, express reference is made to the judicial unity of the system and the function of resolving administrative litigation and disputes is assigned to the courts, judges and Supreme Court.(150)
In general, in the countries that maintained the monist judicial system (Chile, Argentina, Venezuela, Paraguay, Mexico, Costa Rica, Peru, El Salvador, Cuba, Bolivia, Brazil, Panama, Nicaragua, Honduras and Ecuador), it developed with a certain level of specialisation, both in the level of court (trial and appellate levels) and a special section within the Supreme Court. Such is the example of Chile, whose Constitution of 1925(151) called for the creation by law of administrative courts in the Judicial Branch, and whose Constitution of 1980(152) directed the courts created by law to evaluate individual claims against the administrative authorities, despite the fact that, in both cases, it was merely an attempt at constitutional norm, which never became a reality.(153)
We could also mention Argentina, with the administrative justice of the Province of Buenos Aires, which provides for special sections in courts of the first and second instances(154), and Brazil, currently with the Federal Justice System, with authority to rule on administrative cases of interest to the Federal Government, the state courts of first instance (courts of the State Treasury [
other examples include Venezuela, with the Constitutions of 1961 and 1999, granting administrative jurisdiction to the courts defined by law;(156) Nicaragua, in the periods of 1898 to 1905, with the federal courts,(157) from 1948 to 1979, with the courts and judges of the Republic,(158) and the Constitution of 1987, with the Amendments of 1995 and 2014 (Constitutional Amendment establishing a special section for administrative litigation in the Supreme Court),(159) and Costa Rica, with administrative courts, in accordance with the Constitution of 1949.(160)
The evolutionary pattern in Latin America in the 19th and 20th Centuries may be displayed according to the basis of the four models of administrative jurisdiction identified.
1811- : Chile
1811- : Argentina
1811- : Venezuela
1813- : Paraguay
1818- : Mexico*
1821-1886: Colombia
1821- : Costa Rica
1823- : Peru
1824- : El Salvador
1824-1927: Guatemala
1825-1965: Honduras
1826-1861: Bolivia
1830-1929: Ecuador
1830-1934: Uruguay
1841-1863: Panama
1854-1874: Dominican Republic
1868-1871: Bolivia
1869- : Cuba
1878- : Bolivia
1880-2010: Dominican Republic
1884-1939: Nicaragua 1891- : Brazil
1948-1974: Nicaragua
1956- : Panama
1979- : Nicaragua
1982- : Honduras
1992- : Ecuador
1939-1948: Nicaragua
1941-1945: Panama
1979-1992: Ecuador
1945- : Guatemala
1974-1979: Nicaragua
2010- : Dominican Republic
1914- : Colombia
1861-1868: Bolivia
1863-1904: Panama
1871-1878: Bolivia
1874-1880: Dominican Republic
1886-1914: Colombia
1927-1945: Guatemala
1929-1979: Ecuador
1934- : Uruguay
1937- : Mexico*
1945-1956: Panama
1965-1982: Honduras
The predominance of the monist judicial system is not the only sign of U.S. influence to be found in the administrative justice systems of Latin-American countries; the expression
However, due process of law, which has been described in common law countries as procedural guarantees prior to administrative decisions that impose restrictions on individual rights,(161) has taken on a quite different form in Latin America.
The Fifth Amendment of 1791 to the U.S. Constitution reads as follows:(162) no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself,
The Fourteenth Amendment of 1868 has a similar orientation in Section 1:
[...] no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
These laws are rooted in Article 39 of the Magna Carta of 1215, whose main legacy has been the rule that a judgement must precede enforcement of penalties:
No free man shall be seized or imprisoned, or stripped of
The expression At the request of the Commons by their petitions put forth in this Parliament, to eschew the mischiefs and damages done to divers of his Commons by false accusers, which often times have made their accusations more for revenge and singular benefit than for the profit of the King, or of his people, which accused persons, some have been taken and caused to come before the King’s council by writ, and otherwise upon grievous pain against the law, it is assented and accorded, for the good governance of the Commons, that no man be put to answer without presentment before justices or matter of record or by
In fact,
The [French] Declaration of the Rights of Man and of the Citizen of
Similarly to the French Declaration of 1789, in the [United Nations] Universal Declaration of Human Rights (1948), the previous fair trial as a prerequisite for enforcement of state actions restricting individual rights is limited to
And that is the predominant perspective in subsequent international conventions on what, in
The fact that the international norms generally refer to “determination” (recognition) of rights, for the purposes of being submitted to an autonomous and impartial tribunal, does not necessarily require a trial that must be prior to the administrative decisions restricting individual rights.
The European Convention on Human Rights (1950) contains the following passage:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an autonomous and impartial tribunal established by law.”(175)
The International Covenant on Civil and Political Rights (1966) provides as follows:
In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, autonomous and impartial tribunal established by law.(176)
The African Charter of Human and Peoples’ Rights (1981) maintains that “Every individual shall have the right to have his cause heard”.
The Charter of Fundamental Rights of the European Union (2000) provides that “everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal”, and that:
everyone is entitled to a fair and public hearing within a reasonable time by a fair and autonomous and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.(177)
Finally, in the American Convention on Human Rights (1969), Article 8 on the Right to a Fair Trial provides as follows:
Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, autonomous, and impartial tribunal, previously established by law, in the substantiation of any
In fact, Article 8.1 of the American Convention follows the international trend and departs from the concept originating in common law to the effect
In recent years, various Latin-American constitutional norms have started to make general references to due process of law, which usually conceive of it as inherent not just in judicial actions but also in administrative actions, apparently in keeping with the spirit of the US Constitutional Amendments of 1791 and 1868.
Article 29 of the Colombian Constitution 1991 establishes that “
According to Article 5 of the Brazilian Constitution of 1988, “no one shall be deprived of freedom or of his assets without due process of law” (subsection LIV), and “litigants in judicial or
According to Article 49 of the Venezuelan Constitution of 1999, “
Article 34 of the Nicaraguan Constitution of 1995 specifies that:
everyone is a proceeding has the right, under equal conditions, to
In Ecuador, Article 23.27 of the Constitution of 1998 provides that “the minimum guarantees established in The procedural system is a means of achieving justice. The procedural rules shall establish the principles of simplified, uniform, effective, immediate, speedy and economic trials, and shall apply the guarantees
Article 76 of the Constitution of 2008, in turn, establishes that:
In every proceeding that determines any type of rights and obligations,
In the following section, we shall discuss countries that generally provide for due process of law. Mexico, in Article 18 of the Constitution of 1917, requires that “the guarantee of every judgement by a body that exercises jurisdiction must be based on a duly processed
Article 139 of the Peruvian Constitution of 1993 refers to “observance of right to defence: the defence of the individual and of his rights is inviolable. No one maybe convicted or deprived of his rights without having been summoned, heard or convicted in a
Regarding legislation, Argentina is worth mentioning, with its Law 19.549/72 (
In fact, there are many points in common between
In that respect, despite the controversy surrounding the expression the Court is not prevented from qualifying a particular domestic body, outside the domestic judiciary, as a “court” for the purpose of the Vilho Eskelinentest. An administrative or parliamentary body may be viewed as a “court” in the substantive sense of the term, thereby rendering Article 6 applicable to civil servants’ disputes. The conclusion as to the applicability of Article 6 is, however, without prejudice to the question of how procedural guarantees were complied with in such proceedings.(179)
The Inter-American Court of Human Rights follows the same orientation as the European Court: it interprets the expression
When examining a decision of the Uruguayan Administrative Court, the Inter-American Court point out that:
it was
There is one characteristic of due process of law, however, conceived in 1792, that is irreconcilable with the right to a fair trial [ A debate is therefore necessary, at the current state of Continental-European law, in order to discuss whether due process of law should be considered an integral part of administrative actions restricting individual rights (initial administrative decisions) or should only be considered to form part of the decisions (judicial or non-judicial decisions) that settle conflicts concerning administrative actions that have already restricted an individual’s rights or are in the process of doing.
According to the European Court case law, if the national laws provide means of appealing an administrative decision, they should be subject to the rules of Article 6.1 of the Convention; thus, if such means are absent, the Convention is applied only in the appellate phase, which demonstrates that a prior proceeding is not a
In this context, the right to a fair trial implies a means of appeal rather than a constituent element of the administrative decision. The practical difference is substantial: while under the system of a right to a fair trial, the challenged administrative decision only ceased to be effective ab initio in the case of
The Latin-American doctrine according to which prior administrative due process (
Even in the late 19th Century, the administrative jurisdiction was still confused with the administrative authorities’
The proceeding is inherent in the jurisdiction, and neither of them can dispense with autonomous management in relation to the parties to the dispute.(187) The judges’ concern for maintaining independence from the monarchy dates back to Article 39 of the Magna Carta de 1215; it is inconceivable for a judge to try his own case.
Independence was not only the spark that gave rise to administrative justice in the 19th Century and to the development of specific administrative law, but even today it is considered to be an element inseparable from the jurisdictional function. Independence is expressly incorporated into a number of different national and international norms, such as the European Convention of Human Rights (Article 6.1) and the American Convention on Human Rights (Article 8.1).
It is therefore possible to argue that in the period in which it was inconceivable for administrative jurisdiction to be autonomous from the public administrative authorities, the expression
By gaining independence vis-à-vis the administrative authorities, the administrative jurisdiction tended to move away from the Executive, and so did the corresponding (administrative) proceeding. In the case of an administrative jurisdiction before the Judiciary, the
However, the jurisdiction is not always before the Judiciary, as, for example, in the system of non-judicial administrative jurisdiction (
At any rate, in this case, the expression
However, not infrequently in certain Latin-America legal systems the
In the Brazilian legislation,(191) the expression
In Continental Europe, the expression
Administrative law in Latin America is more heavily influenced by the European tradition than by the spirit of the laws of due process. In Latin America, the system of undivided jurisdiction prevails and its courts commonly make up for the absence of prior due process of law by means of broad judicial review in which those same guarantees are provided.(193)In practice, however, the logic of due process of law becomes ineffectual in the administrative sphere.
In addition, the reality of the Latin-American administrative authorities is not compatible with a system of autonomous or quasi-autonomous authorities. The few examples are in the area of access to official information, supported by the
The classic border between administrative functions and jurisdictional functions, according to Monroy,
is provided by the primary and secondary effect that they produce, respectively, in the area of social relations. The administrative activity is primary insofar as it is designed to be performed immediately and directly vis-à-vis citizens; on the other hand, jurisdictional activity is secondary: i.e., it is only present when laws that are intended to be complied with spontaneously, including administrative laws and the actions of the authorities are rejected by citizens and a mechanism is necessary to ensure their effectiveness or compliance in a voluntary or forced manner.(199)
This explains the reluctance to admit the
This situation is not changed by the case law of the Inter-American Court of Human Rights which, following the example of the European Court, requires a fair trial (effective proceeding) by an
In reality, regarding the procedure prior to restrictive administrative decisions, the Inter-American Court decided that:
the guarantees contemplated in Article 8.1 of the Convention are also applicable to cases in which a certain public authority adopts decisions that rule on such rights,(202) taking into account that although
The scholarly writings of Hispanic Latin America have preferred the expression
There can be no doubt that autonomous jurisdiction is not an exclusive function of the Judiciary; it can be exercised by the Executive. It would be mere speculation to project the present debate into a past period when the Judiciary supposed to devote itself exclusively to questions of private law and the Executive to public law (ruling on disputes, as well) – at the time, an
It is therefore time to confront the central topic of this article: the prior nature that is required for observance of due process of law in the acts of the public administrative authorities, as expressed in U.S. administrative and constitutional law,(204) and in the Latin-American laws and constitutions, even though no corresponding concept is to be found in the Inter-American Convention of Human Rights and in the European Convention of Human Rights.
Is due process of law, through jurisdiction, a prerequisite for the formation of an administrative decision restricting individual rights under Latin-American law?
In reality, according to the letter of most of the laws in force in Latin America, what is required is for the administrative decision to originate from a fair proceeding, in order words, observance of the prior guarantees of due process of law is a condition precedent for the enforcement of administrative decisions. That is the mens legis.
In this context, if the State requires but does not provide for prior jurisdiction by means of a non-judicial administrative proceeding offering the guarantees of a
It is insufficient to argue that compliance with the
From a different perspective, regarding administrative decisions made at the request of an individual, the question has now been examined whether the petitioner should have the option of [first] exhausting the recourses in the non-judicial administrative channels or else initiate judicial proceedings immediately.(206) In effect, that option does not correspond to suitable organisation of the state: if the non-judicial administrative appeal is non-transferrable, it should be rejected. There are only two possibilities: either the non-judicial administrative appeal is indispensable as a prerequisite for access to a judicial proceeding or it has no function at all and should be discarded (as a prerequisite for access to a judicial action).
On the other hand, from a more rigid perspective, to affirm that the prior administrative appeal as a prerequisite for legal action is necessary on the grounds that the authorities that the authorities have the exclusive right to reverse their decisions(207) amounts to confusing the 19th-Century concept of the power of
Thus, there are two possibilities: either the proceeding is started at the initiative of petitioner appealing against a decision denying his petition that was issued at the end of a fair proceeding conducted by autonomous authorities, or else such a proceeding becomes merely decorative and should be discarded. However, as in the previous situation (proceeding initiated ex officio), if a non-judicial administrative appeal results in another decision against the petitioner in the appellate phase, then we should rethink the scope– intensity – of appropriate judicial supervision to avoid the risk of creating overlapping jurisdictions.
It would lead to an undesirable duplication of jurisdictions to a adopt a fair and impartial hearing (procedural due process) prior to the [enforcement of the] administrative decision, while at the same time maintaining a judicial system of administrative jurisdiction (monist or dualist) or a nonjudicial jurisdiction with broad powers of review (exhaustive review), in both cases,
The historical evolution of the administrative jurisdiction in Europe from the 19th Century shows that independence is a vital prerequisite for its existence; the location of that jurisdiction within the structure of the state is of merely secondary importance: whether on the level of the Judiciary, the Executive, or divided between the two, or in entities that are autonomous from both the Judiciary and the Executive.
Administrative jurisdiction is currently conceived of as inherent in a fair trial and must not be confused with the primary actions of public administrative authorities, understood to be purely executive, sometimes resulting from
Based on such premises, the combination of the organisation of the administrative jurisdiction within the state (non-judicial, judicial or hybrid; monist or dualist) and the nature of the means of elaboration of administrative decisions that restrict the rights and interests of individuals (whether based on proceedings or procedures) lays the groundwork for the formation of a model of administrative justice.
The scope and intensity of the administrative jurisdiction are proportional to the level of specialisation of the state bodies by which it is exercised; the greater the scope and intensity of the jurisdiction prior to the formation of the administrative decision (prior review), the less important the bodies devoted to
It is therefore necessary to analyse the optimal point in time for the administrative jurisdiction: review before or review after the formation of the administrative decision?
In the current legal system of Latin-American countries, the fair trial is advocated as inherent in the formation of administrative decisions, and
On the model of the
In practice, however, the opposite situation occurs: there are no administrative proceedings and no jurisdiction that is really prior to the administrative decision; and the Judiciary, which lacks an autonomous administrative jurisdictional structure, occasionally endeavours to form special administrative sections.
The US influence on the Latin-American model of administrative justice seems to be outweighed by the Continental-European Tradition.
In this context, where the current legislation is divorced from reality, we are trying to determine where the Latin-American administrative jurisdiction is heading. How can we interpret the evolutionary historical framework of its administrative justice over the 200 years of its existence and put it in perspective?
Even after the influence of the U.S. Constitution with respect to the unified judicial system, in the early 19th Century, and of administrative and procedural due process of law in the late 20th Century, Ibero-America, naturally oriented by civil law, remains tied to the culture of Continental-European administrative law.
The transformations undergone by administrative law in European countries have not been followed in Latin America, however, resulting in a lacuna in its administrative justice system that can still be felt today.
In the Europe of the first half of the 19th Century, discussions were raised about an administrative jurisdiction separated from the public administrative authorities, even in the hands of a specialised Judiciary; in contrast, in Latin America, the constitutions of the period did not even tackle the subject but contented themselves with creating a Judicial Branch to try “administrative disputes” (
The evolution of administrative jurisdiction in Europe gradually became noticed in Latin America in various ways; it was not until the end of the 19th Century that timid experiments were begun with a system of specialised jurisdiction which, in certain countries, was tied to the Judiciary and, in others, separated from both the Judiciary and the Executive. This system is currently found in only five different Latin American countries: Guatemala, the Dominican Republic, Colombia, Uruguay and Mexico.
The absolute majority of the Latin-American countries have adopted the unified judicial system, which, however, since it is inherent in
In that respect, the Judiciary’s lack of specialisation and constant deference to the administrative authorities in the United States were made up for by the increasing effectiveness of
It wasn’t until the late 20th Century, when democracy was restored to much of Latin America, that the Judiciary started exercising more intense supervision of administrative actions (including the use of discretionary powers) and began to create certain adjudicating bodies specialising the field of administrative law.
The excessive load on the courts, however, is the most obvious sign that the system has failed.
The occasional specialised bodies – typical of the monist judicial system – are incapable of avoiding the trend of their judges to show favouritism towards administrative actions or (in the exceptional cases in which they act more boldly) of eliminating the mistrust of the jurisdiction aroused by the administrative authorities, who claim that the courts are abusing their authority and that the judicial decisions are of doubtful quality.
Moreover, in Latin America, civil servants in positions of authority do not always have legal expertise and, in most cases, their duties include both investigation and decision-making in the context of administrative procedures that result in decisions restricting the rights of individuals.
Now that it has become firmly established that administrative decisions are subject not only to the applicable statutes but also to the supremacy of constitutional law and international human rights conventions -- a concept which has become ingrained in Latin-American and Continental European legal doctrines and encouraged by the case law by the European and Inter-American Courts of Human Rights - public administrative authorities are required to have a high level of legal expertise, along with a certain degree of independence in decision-making.
It is also extremely important to understand that the effects of administrative decisions on the interests of private citizens, guided by respect for their fundamental rights, must be the result of fair hearing, in which the decision-making authorities must not be confused with the executive authorities.
In this context, it is inevitable to conceive of an administrative jurisdiction that is implemented in two distinct phases, before and after the elaboration of the administrative decision, in order to satisfy both the need for all public institutions to respect the Rule of Law and the guarantee of effective judicial protection, although not necessarily in the hands of the Judiciary.
Without many alternatives, this is currently the road that should be followed by the administrative jurisdiction in Latin America.
The panorama of Latin-American constitutional and statutory law makes it strikingly clear that administrative jurisdiction must be handled by a Judiciary that lacks a specialised structure (except for the five countries mentioned above), while at the same time due process of law must clearly be a constituent element of administrative decisions that restrict the rights of individual.
It has therefore become urgently necessary to advocate a reform of the State by endowing it with a structure capable of conducting prior jurisdictional proceedings through civil servants trained in law and autonomous, impartial and specialised administrative authorities.
As the State becomes structured in such a way as to create a primary jurisdiction for the elaboration of administrative decisions,
If the Continental-European legal system now co-exists with non-judicial procedures prior to administrative decision and a predominantly
The same cannot be said of Latin America, however, where it would be advisable to split the jurisdiction (corresponding to a proceeding conducted by autonomous judges or authorities) by shifting part of it to a non-judicial phase prior to the formation of the administrative decision.
The Latin-American of model administrative justice tends to rely on European experience but it cannot continue to draw its inspiration from that source because, paradoxically, it would not provide individuals with sufficient guarantees in today’s Latin America.
The Latin-American model is moving towards a transitional phase, in search for the implementation of the administrative
Finally, the Latin-American organisational model is tending to move towards the hybrid jurisdictional system of the United States, experienced by Honduras in the 1960s and 80s, but which is not completely similar to it. It is a model that tends to preserve its own identity because the Latin-American experience with non-judicial jurisdiction has moved towards bodies and tribunals that are autonomous from the Executive, as we have seen in Bolivia, Panama, the Dominican Republic, Colombia, Guatemala, Ecuador and Uruguay in the 19th and 20th Centuries.
English version of the chapter included in the collective work published in Germany: K
“The total number of cases increased from 83.4 million in 2009 to 92.2 million in the year 2012; out of that total, 28.2 million (31%) were new cases and 64 million (69%) had been pending from prior years. Moreover, in 2012, each judge tried an average of 1,450 cases, an increase of 1.4% relative to 2011. Although the judges are trying more cases each year, the total number of judgments (1 million or 4.7%) was lower than the increase in new cases (2.2 million or 8.4%), which means that the number of cases tried was 12% lower than the total number of cases entered in the records. There is no way to determine the exact percentage of cases that involved the public administrative authorities, but such disputes are estimated to account for the majority of them, over 50% of the total number. There are four indications that lead to this conclusion: (i) in 2012, out of the total number of 64 million cases pending from prior years, 39.9% were tax enforcement cases, while, in 2013, 41.4% of the total of 66.7 million pending cases were tax enforcement cases; (ii) over the past 20 years, the public authorities have been a party to 90% of the total number of judicial proceedings tried in the Federal Supreme Court (
It is necessary to point out the scope and context of the terminology used in this text. The expression “contencioso administrativo” [administrative litigation] refers to claims or challenges by an individual against the actions of an administrative authority. The expression “administrative jurisdiction” means the jurisdictional service intended to resolve administrative litigation, and “administrative justice” refers to the state bodies responsible for such jurisdictional action (U
J
See G
García de Enterría takes the opposite position that the current
On the difference between the Ibero-American “judicialist system” and the U.S. model, see J
In 2012, 25 million tax enforcement cases were pending in Brazilian courts, which amounts to 39.9% of all litigation in process (
Marcos de Vasconcellos,
A
J
Criteria partly inspired by the system developed by Michael Asimow.
T here are 19 Latin-American countries of Iberian origin: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Uruguay and Venezuela.
According to Rivero, in the current state of the art, it would be rash to conclude that a real Latin-American system administrative law exists (R
R
J
Diego Valadés,
C
C
C
C
C
C
R
See I
R
C
T
O
Leticia Fontestad Portalés,
Loi du 24 mai 1872 portant réorganisation du Conseil d’Etat [Law of 24 May 1872 on the Reorganisation of the State Council] (Fr.);
Gesetz Betreffend die Organisation der Inneren Verwaltung [Law on the Organisation of Internal Administration], Oct. 5, 1863 (Ger.).
C
T he Belgian law of the time is featured in the following work: A
On the subject of the influence of the liberals on the incorporation of the unified judicial system, see R
In Mexico: J
E
Karl-Peter Sommermann,
C
In the opinion of Ribas, clearly opposed to an autonomous administrative jurisdiction, “The creation of judges and courts devoted exclusively to trying such appeals would lead to the same disadvantages unless they could be frely appointed and removed by the government; otherwise, they would be new and costly springs in the already complex and costly administrative mechanism” (A
See V
T here are currently Councils of State with functions of administrative jurisdiction: France, the Netherlands, Belgium, Italy and Greece; cf. the judicial system of administrative jurisdiction with a specific supreme court in the following countries: Germany, Austria, Portugal, Luxemburg, Sweden, Finland, Czech Republic, Poland, Lithuania; there is a judicial system of administrative jurisdiction equipped with a supreme court with common administrative and civil jurisdiction in Spain, Switzerland, Slovenia, Hungary, Romania and Estonia; there is a unified judicial system (monist judicial system) in the United Kingdom, Ireland, Malta and Cyprus;
See C
According to R
F
Rivero warns of the ideology unavowed
See H
See Richard J. P
Speaking ironically, Rivero concluded that there is a dualist jurisdiction in the English judicial system (R
See Asimow,
Council of State in France, the Netherlands, Belgium, Italy and Greece) (F
Under English law, the authorities were more closely tied to fundamental rights than to statutory law; on the contrary, under French law, the authorities were closely tied to statutory law than to fundamental rights (M
C
C
C
See Francisco Mauro Dias, Contencioso Administrativo nos estados para questão de pessoal [Administrative Litigation in the States for Personal Matters], 8th National
C
C
C
C
C
C
C
C
C
Art. 8o of Legislative Decree No. 4 of 1945; A
C
C
C
C
Guatemalan Constitutional Amendment (1927) art. 41.3, which reworded art. 85 of the amended constitution.
Guatemalan Constitutional Amendment (1935) art.6, which reworded art. 17 of the Constitution, and art. 23, which changed the wording of art. 85 of the amended constitution.
C
C
C
H
C
C
C
C
C
C
Arts. 116 V and 122
C
On judicial review of the public administrative authorities in general, see Jorge Fernández Ruiz,
R
Legislative Act 3 (Constitutional Amendment) of 1910, amending Title XV of the Colombian Constitution of 1886 (art. 42).
Ato Reformatório (Constitutional Amendment) (1914) art. 6.3 (Colom.).
C
C
Arts. 280, 290 and 303 C
See R
C
C
C
C
See A
See Luis Enrique Chase Plate,
C
C
C
C
See Jorge Fernández Ruiz,
R
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
C
A constitution according to which it was legal to bring proceedings against the Executive (Constitution of Nicaragua (1884) art. 191).
C
C
C
C
C
C
Legislative Act 2 of Oct. 25, 1956.
C
C
C
C
C
C
C
C
C
C
C
C
U.S. C
Before the Constitution of 1787, local laws had already provided a similar rule:
U.S. C
T ranslation available from the
J
L
O
G
“Nul ne peut être homme accusé, arrêté, ni détenu que dans les cas determinés par la loi et selon les formes qu’elle a prescrites. Ceux sollicitent qui, expediente, exécutent ou font exécuter des ordres arbitraires, doivent être punis; Mais tout citoyen appelé ou saisi en vertu de la loi doit obéir à l’instant; il se rend coupable par sa résistance.”
“No subject shall be held to answer for any crimes or no offence until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself; and every subject shall have a right to produce all proofs that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.”
U
T he principle
E
Art. 14.
EU C
A
Volkov v. Ukraine, 2010 Eur. Ct. H.R. 1. Along the same lines (as a paradigm). Eskelinen v. Finland. 2007 Eur. Ct. H.R. 1,
Constitutional Court v. Peru
Vélez Loor v. Panama, Preliminary Defences, Merits, Damages and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 218, ¶ 108 (Nov. 23, 2010) (emphasis added).
See
Regarding the consensus in the Latino-American doctrine on the application of due process.
J
T his model of “adversarial hearing/combined function/limited judicial review,” in which the decision-making administrative authorities belong to the Executive Branch does not have any equivalent in Latin America; Honduras recognised a system of hybrid jurisdiction from 1965 to 1982 but the administrative tribunal was autonomous vis-à-vis both the Judiciary and the Executive. Asimow,
According to Manuel María Diez, “algunos autores usan los términos proceso y procedimiento como sinónimos. Esta posición es insostenible, ya que no se pueden identificar ambas instituciones ignorando el problema que presentan” [“certain authors use the terms “proceso” and “procedimiento” as synonyms. That position is untenable since the two insitutions cannot be confused without being aware of the resulting problems]. P
Lei no. 9.784, de 29 de Janeiro de 1999 (Law on federal administrative proceedings).
Regarding certain obstacles in Brazil to creating truly autonomous agencies
See TRF2, AC 2003.51.03.002508-3, Fed. App. Reporting Judge Aluisio Mendes: [...] despite the fact that the judgement and now the decision appealed against acknowledged an irregularity in the administrative act which split [the deceased’s] pension to the benefit of the life companion, namely the failure to notify the widow, that irregularity was found to be completely irrelevant when submitted to the scrutiny of the Judiciary, so that there is no obstacle to upholding the above-mentioned act.” (Available at: <
O
Art. 33 of the Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental [Federal Law on Transparency and Access to Public Governmental Information] of 2002
Art. 31 of the Law No. 20.285/2008 (Ley sobre el Acceso a la Información Pública [Law on access to public information]).
Art. 8 of the Legislative Decree No. 170/2006 (Decreto No. 170/2006, Ley de Transparencia y Acceso a la Información Publica [Law on Transparency and Access to Public Information]).
Arts. 51 to 60 Decree nº 534/2011 (Ley de Acceso a la Información Publica [Law on Access to Public Information]),
G
See the precedents in note 180
T he European Court held that Councils of State situated outside the Judiciary and exercising functions of administrative jurisdiction are compatible with the Convention provided that the advisory functions are not concentrated in the judges to the dispute (Judgement in Procola v. Luxembourg delivered by the Court on 28 September 1995; Judgement in Kleyn et al v. the Netherlands, delivered by the Court on 6 May 2003,
See Case of the Constitutional Court v. Peru
See the Case of Claude Reyes and others v. Chile, ¶119, (emphasis added).
See R
Regarding the automatic suspensory effect on the implementation of an administrative decision created by filing a judicial appeal, see R
See
See R
O n the scope of judicial administrative jurisdiction as proportional to the effectiveness of the prior administrative decisions, see, in general, P
A