Access to independent administrative justice

The right to challenge the lawfulness of administrative acts and actions in court

Review of laws. Individuals should have the right to challenge the lawfulness of administrative acts and actions (including inaction and delay) in court to protect their rights. At minimum it should be possible to contest administrative acts as well as actions and delay (administrative silence). If one of these three is not possible to contest, no points are awarded. For example, if in order to contest an administrative action – the plaintiff needs to first obtain a written administrative act confirming that the administration will not perform the action or will not adjust its action, then no points are awarded, because it should be possible to contest the action directly.

The time limit for challenging an administrative act in court is at least 30 days

Review of legislation. The time limit for general complaints against administrative acts is assessed and it should be at least 30 days from delivering the act to the person. There can be different time limits for specific claim types, e.g., claim for compensation of damages can have a longer deadline, but these are not considered for this criterion.

The right to apply for legal aid in court proceedings for administrative cases

Review of legislation. All persons should have the right to apply for necessary legal aid (assistance for legal representation) in court proceedings for administrative cases. The legal acts regulating availability of legal aid should ensure its availability for participation in administrative disputes and there should not be any restrictions for physical persons. The right to free legal aid, where the interests of justice so require, is enshrined in the European Convention of Human Rights (Article 6(3)(c)) for criminal proceedings and in its case-law the European Court of Human Rights has widened its application to civil and administrative proceedings. The Council of Europe Committee of Ministers (“CoE CM”) Resolution (78) 8 On Legal Aid and Advice recommends the Member States to ensure that persons in an economically weak position are able to obtain necessary legal advice on civil, commercial, administrative, social or fiscal matters. The CoECM Recommendation No. R (93) 1 On Effective Access to the Law and to Justice for the Very Poor invites the Member States to promote legal advice services to the very poor by defraying the cost of legal advice through legal aid schemes, by supporting advice centres in underprivileged areas, and by enabling non-governmental organisations or voluntary organisations providing support to the very poor, to give legal assistance.

Right to be exempt from court fees, based on the material situation of the applicant

Review of legislation. Legislation should provide for exemption from payment of court fees in administrative disputes, based on the material situation of the applicant.

The statutory level of fees does not create a barrier to access to justice

Review of laws. To assess whether fees are not a barrier to access to justice, the level of fees are analysed in two types of cases: 1. The fee for a complaint against refusal of access to public information must not exceed 5% of the average gross salary (as defined by the administration’s national statistics office); 2. The fee for a complaint against results of a public tender with an estimated value of EUR 25 000 must not exceed EUR 500.

The costs of the applicant are covered by the state, if the case ends in favour of the applicant

Review of legislation. If the court decides in favour of the applicant, the court costs (court fee and costs of legal representation) of the applicant should be covered by the state according to legislation.

The administration bears its own costs regardless of the outcome of the procedure

Review of legislation as well as court practice (e.g. in case not explicitly regulated in the legal framework). The criterion is fulfilled even if in exceptional cases the complainant is responsible for covering the costs, e.g., when the complainant has caused the costs by inappropriate behaviour or similar.