Meeting of the working group Independence and Effectiveness in Beaulieu sur mer on 17. and 18.10.2010
Dr. Janne Aer, Administrative Court of Helsinki
1. To some extent
2. To some extent
a This right is guaranteed as an obligation of admistration in the Administration Act.
b This right is quaranteed in the Act concerning Publicity of Administrative Action. Every person have general right to have access to documents of him or her whenever he or she likes. Administration have also obligation when handling an certain administrative case to send to a party as he or she is heard the documents which may have any affect in the case.
c The administration have obligation to give reasons for its decisions. The are exceptions of this rule such as decisions concerning annual income tax and regular paid social benefits. The length of reasons varies a lot from few lines to several pages depending on the issue and merits of the case.
There are no general time limits to the decisionmaking. Some special limits exists for instance limit for granting certain social benefits. No legal remedy is available for the cases of excess delays. Although proposals have been made to introduce such a remedy to the finnish legal system, they have not led to any legislative action.
The remedy before a court is quaranteed for everyone with no difference whether the rights and freedoms are quaranteed by the domicial law or the Union law. The Union law has the same status as the domicial law of Finland.
The appeal is always made to a administrative court, but in many cases party have to apply for internal review before he or she is entitled to make an appeal. The purpose of internal review procedure is to give fast and simple way of correcting administrative decions. The system of internal review is widely used in admintration.
The number of instances is two : administrative courts of first instance and the supreme administrative court.
The right to fair hearing covers all kinds of cases.
Adminstrative courts may quash or alter administrative decisions only on the legal grounds, but the legality is widely understood. The scope of review by administrative courts varies according to the subject matter of the case. For instance in tax cases there is no room for adminstrative expediency and taxation is totally under court control. On the other hand administrative expediency has important role in planning law and courts don’t use their powers to decide on the content of plans.
Courts are entitled to control both questions of law and fact. Facts can be examined within the grounds invoked by appellants. Wittnesses and experts can be heard if necessary. Court can nominate wittnesses even on its own motion.
In certain type of cases courts have expert judges, who are not lawyers. Such cases concern child protection and involuntary care for mental illness and dangerous infectious diseases. Expertjudges participate also decisionmaking in cases concerning environmental permits and patents. Courts seldom hear experts on its own motion. Experts working for administration are heard as wittnesses of administration.
Courts may replace administrative decisions, but in the field of municipal administration there are some restrictions which make appeal cassatory by nature.
The basic structure of proceedings is not the two party system and parties are not considered as adversaries. The procedure is not based on the active role of parties, and you don’t lose the case only because you are passive in proceedings. The administration is not seen as an opposing party, so administration do not have the formal position of party. In some cases there is only one party, although the administration is heard in the case. Two party system is in use in some important fields of administration such as taxation, where there is a counsellor representing taxadministration. In case concerning building and environment the number of parties can be more than two.
Courts are tied to the scope of the decision appealed against and within those limits also to the grounds invoked by appeallant. In spite of the operative facts of the appeal courts can examine the manifest illegalities of the administrative decision, for instance whether decision has been made by right authority. No restrictions concern the evidence that court can take notice of.
Most of the topics in draft are familiar to finnish judges and it is difficult to point out any single recommendation that would have big impact on national rules in Finland. The recommendations contradicts no way finnish practices, and the values they represent are supported by the finnish judiciary. The crucial point is that jugdes are seen as an unified profession without making difference between judges of civil courts and administrative courts.
The most important aspect of the draft is that it consist a common european ideology of judicial profession. Recommendation shows that the judiciary have a special position in modern state and judges are not in the same position as the civil servants of the state. The special position justifies a certain kind of autonomy of the judiciary. In Finland judges are traditionally seen as civil servants of the state and same rules concern both judges and civil servants. This tradition is breaking. The recommendations will have great significance as a whole when legislation concerning the position of judges and administration of courts is going to be reformed. The finnish association of judges is making strong efforts to ensure that the reform will take place after parliamentary election 2011.
The recommendation has totally missed the question of accountalibity of judiciary. From point of view of democracy it is very problematic to emphasise the autonomy and independence of judiciary. Judges are only humans and they are not infallible. So we should not forget the phrase of Juvenal : will guard the guards themselves ?