The right to be heard: towards a general principle of administrative law
https://doi.org/10.52468/2542-1514.2024.8(4).103-112
Abstract
The subject of the article is related to the analysis of Russian legislation formation of opportunities for an individual to be heard, reflected in judicial practice.
Methods. This analysis is based on the right to be heard as a general principle of administrative law, taken from foreign legal orders through the comparative legal method. In addition, the article used formal-dogmatic, historical methods. Initially, the guarantee in question is of a judicial nature, that is, it appeared and was further clarified in judicial practice. The lead in substantiating the right to be heard belongs to the Anglo-American legal family, since there has always been a special emphasis on procedural aspects. Along with this, French administrative law was not an exception, where the opportunity to be heard was also introduced by the State Council, but enshrined much later in the Code on regulating relations between the population and the administration. It should also be noted that the presence of a legislative act does not prevent the development of judicial doctrines.
The purpose of this observation is to study the possible role of Russian judicial practice in the development of the right to be heard as a general principle of administrative law. To do this, it is necessary to determine the historical background for the emergence of this right, the development features in various legal traditions, to identify the features of Russian judicial practice, correlating them with foreign doctrines and associated concepts (primarily, with the right of participation).
Main results. In Russian law, the right to be heard is provided by some federal laws. However, this principle has not yet been reflected in any act of higher judicial authorities, which could affect the level of protection by consolidated uniform approaches. The court decisions of the cassation instances presented in the study, on the contrary, show he discrepancies and shortcomings of legal regulation in disputes with citizens and in economic affairs. In the latter case, the legislation is more detailed; the courts apply it more readily, siding with private individuals. Whereas, within the framework of a personal reception of citizens, restoring rights is much longer and more difficult, because the administrative bodies themselves create various obstacles.
Conclusion. These problems can be overcome through the perception of comparative legal approaches in understanding the right to be heard as a general principle of administrative law. Indeed, a private person should be able to present his point of view and evidence, especially when it comes to interference with his freedom.
Keywords
General principles of administrative law,
administrative procedure,
due process,
natural justice,
opportunity (right) to be heard,
right to participation
Supporting agencies: The research was carried out at the expense of a grant by Russian Science Foundation No. 23-28-01729, https://rscf.ru/project/23-28-01729/.
About the Author
P. A. Kuryndin
St. Petersburg University
Russian Federation
Russian Federation
Pavel A. Kuryndin – PhD in Law, Assistant, Department of Administrative and Financial Law
AuthorID: 1079485
7-9, Universitetskaya nab., St. Petersburg, 199034
References
1. Opalev R.O. On the question of the correlation of administrative proceedings and administrative procedures. Vestnik grazhdanskogo protsessa = Bulletin of civil procedure, 2021, vol. 11, no. 2, pp. 66–79. DOI: 10.24031/2226-0781-2021-11-2-66-79. (In Russ.).
2. Lukianova I.N. The right to be heard as a fundamental idea of modern Russian civil proceeding. Vestnik Universiteta imeni O.E. Kutafina (MGYuA) = Courier of Kutafin Moscow State Law University (MSAL), 2021, no. 12, pp. 133–139. DOI: 10.17803/2311-5998.2021.88.12.133-139. (In Russ.).
3. Jackson P. Administrative Law and Natural Justice. The Modern Law Review, 1972, vol. 35, no. 1, pp. 94–96.
4. De Smith S.A. The Right to a Hearing in English Administrative Law. Harvard Law Review, 1955, vol. 68, no. 4, pp. 569–599.
5. Mott R.L. Due Process of Law: A Historical and Analytical Treatise of the Principles and Methods Followed by the Courts in the Application of the Concept of the «Law of the Land». New York, Da Capo Press, 1973. 721 p.
6. Nathanson L.N. The right to fair hearing in Indian, English and American administrative law. Journal of the Indian Law Institute, 1959, vol. 1, no. 4, pp. 493–522.
7. Ilyin A.V. On the principle of fairness of administrative proceedings. Zakon = Law, 2019, no. 1, pp. 95–101. (In Russ.).
8. Vedel G. Le droit administratif peut-il demeurer indéfiniment jurisprudentiel?. Etudes et documents du Conseil d'État, 1979–1980, no. 31, pp. 31–46. (In French).
9. Costa D. Codification of Administrative Law: A French Oxymoron, in: Uhlmann F. (ed.). Codification of Administrative Law: a comparative study on the legal basis of administrative law, Oxford, Hart Publ., 2023, pp. 127– 146.
10. Rivero J. Le système français de protection des citoyens contre l’arbitraire administratif à l’épreuve des faits, in: Mélanges en l’honneur de Jean Dabin, in 2 volumes, Bruxelles, Bruylant Publ.; Paris, Sirey Publ., 1963, vol. II, pp. 813–836. (In French).
11. Davis K.C. The Requirement of Opportunity to Be Heard in the Administrative Process. Yale Law Journal, 1942, vol. 51, no. 7, pp. 1093–1142.
12. Galligan D.J. Due Process and Fair Procedures: A Study of Administrative Procedures. Oxford University Press, 1996. 513 p.
13. Davydov К.V. The Right to Participate in Consideration of Administrative Matters as a Fundamental Right of Administrative Procedure Participants: Сomparative Legal Analysis. Aktualʹnye problemy rossiiskogo prava = Actual Problems of Russian Law, 2019, no. 10, pp. 11–19. DOI: 10.17803/1994-1471.2019.107.10.011-019. (In Russ.).
14. Auby J.-B. La bataille de San Romano: réflexions sur les évolutions récentes du droit administratif. L'Actualité juridique. Droit administratif, 2001, no. 11, pp. 912–926. (In French).
15. Aïdan G. De la démocratie administrative à la démocratie sanitaire dans le secteur public de la santé. Revue française d’administration publique, 2001, no. 137–138, pp. 139–153. DOI: 10.3917/rfap.137.0139. (In French).
16. Sherstyuk V.M. Doubts about the existence of the principle of "the right to be heard and to be heard" in civil procedural law should be dispelled. Sovremennoe pravo = Modern law, 2020, no. 6, pp. 66–70. DOI: 10.25799/NI.2020.10.43.014. (In Russ.).
17. Lukyanova I.N. The right to be heard and heard in the first and verification instances of civil proceedings. Zakony Rossii: opyt, analiz, praktika, 2022, no. 9, pp. 50–55. (In Russ.).
18. Sultanov A.R. The legal consequences of the lack of motivation of non-normative legal acts when challenged in courts. Vestnik grazhdanskogo protsessa = Bulletin of civil procedure, 2014, no. 4, pp. 221–231. (In Russ.).
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For citations:
Kuryndin P.A. The right to be heard: towards a general principle of administrative law. Law Enforcement Review. 2024;8(4):103-112. https://doi.org/10.52468/2542-1514.2024.8(4).103-112
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