A Fair Trial Also When Public Powers Are Involved

Miriam Allena (Department of Legal Studies) in her recent L'art. 6 CEDU come parametro di effettività della tutela procedimentale e giudiziale all'interno degli Stati membri dell'Unione Europea (Rivista italiana di diritto pubblico comunitario, 2, 2012), highlights how the application of the principles of "fair trial" in the matter of administrative law urges a material overhauling of the function of administrative trial. Indeed, wider and more incisive powers will be assigned to administrative judges for challenging Public Administration decisions, therefore granting citizens new defenses vis-à-vis public powers.

Allena, as first thing, mentions that the authors of Art. 6 of the European Convention on Human Rights (ECHR) decided to leave out from the rule on "fair trial" – i.e. on the right to a trial of reasonable length, before an independent and impartial judge and with effective possibilities of defense – the administrative matter, due to its alleged specialty in comparison with civil and criminal law.

Over the time, however, the European Court of Human Rights "re-defined" the concepts contained in Art. 6 ECHR. Therefore, the notion of "criminal charge" was extended to certain administrative penalties. Similarly, the concept of "tribunal" was deemed as referable also to any authority endowed with the power to issue binding decisions, capable of affecting the subjective situation of any person. In this way, the Court extended the applicability of the fair trial principles to administrative trial – i.e. the jurisdictional remedies vis-à-vis Public Administration – as well as to administrative procedure, handled by the Public Administration itself.

Consequently, the guarantees of fair trial will be afforded also in administrative procedures, first of all as regards impartiality and independence of the body endowed with decisional powers: these features, however, often lack in Public Administration. The Court, nonetheless, with a flexible approach, admitted that, in principle, such kind of shortcomings in administrative procedure could be "compensated" by the impartiality and independence of the tribunal before which the administrative decisions can then be challenged.

In order for such a "compensation" mechanism to work, it is indeed necessary that the relevant tribunal has an effective power to fully re-examine the administrative decision, being also entitled to take discretionary decisions.

Allena, therefore, underlines how such findings have material consequences in Italian administrative law, according to which, instead, the judge is usually prevented from controlling the outcome of technical discretion exercise by the Public Administration.

In spite of the traditional national approach, the findings of the European Court of Human Rights are binding for Italian judges. Indeed, not only Italy is a contracting State to ECHR, but principles laid down in Art. 6 ECHR, on one side, are taken up in the Charter of Fundamental Rights of the European Union and, on the other side, have been agreed with and applied by the European Court of Justice. This, furthermore, in a European context that more and more frequently acknowledges the essentiality of the availability of effective judicial remedies.

In this way, according to Allena, Art. 6 ECHR would be able to trigger a change in the relationship between citizens and Public Administration, granting greater chances to obtain justice vis-à-vis the Public Administration.