Vereiste van volle rechtsmacht in de zin van art. 6 EVRM in bestuursgeschillen

Over the last decades the influence of the government in civil society has only increased. Consequently the number of administrative disputes grew exponentially. Parallel to this evolution there is a growing interest in the concepts of administrative justice (the reasoning that the administration is subject to certain obligations when taking decisions) and judicial review. This research looks into the influence of the right to a fair trial, as protected in art. 6 ECHR (art. 13 ECHR) and art. 47 EU-Charter, in this respect. The research comprises four chapters. The first chapter looks at the scope of application of art. 6 ECHR and art. 47 EU-Charter. In a second chapter, I analyse the influence of art. 6 ECHR and art. 47 EU-Charter in the administrative procedure. The third chapter goes into the judicial phase. How should a judge review administrative decisions in terms of scope, intensity and outcome of the review? What does the notion "full jurisdiction" mean? In a fourth chapter the analytical framework, developed throughout the previous chapters, is applied in three branches of case law (expert procedures, case law of the Market Court concerning decisions of certain regulating authorities and asylum and migration decisions of the Council for Alien Law Litigation). This research testifies to the strong connection between the administrative and judicial phase. Although art. 6 ECHR and art. 47 EU-Charter primarily have an impact in the judicial phase, they can also have an effect in the pre-judicial (administrative) phase. The required judicial review is dependent on the guarantees that were respected in the administrative procedure. Because of a society getting more and more complex, judges - who often have a general jurisdiction - have a hard time reviewing decisions made by specialised administrative authorities. This implies an asymmetry in expertise. A possible solution is strengthening the procedural guarantees in the administrative procedure. A judge can subsequently focus its review on the respect of these procedural guarantees (procedural rationality review). A judge can never rule on the opportunity of an administrative decision (separation of powers), nor can he limit itself to a irrationality test. Apart from that the required judicial review according to the full jurisdiction-principle is dependent on a combination of elements. Besides the aforementioned guarantees in the administrative procedure these are the nature of the decision (policy oriented or complexity) and the specific scope of the dispute. Either way, a manifest error-test will only suffice when the administrative procedure respects certain minimal guarantees (right to be heard and impartiality). This is also true for administrative sanctions, in spite of the traditional view that administrative sanctions should always be the subject of a full review. This puts into perspective the traditional believe that (procedural) principles of good administration can't be invoked contra legem. The full jurisdiction-principle doesn't require a judge having the power to reform the contested decision. Nonetheless administrative law shows a clear tendency towards final dispute resolution. Although the role of the right to a fair trial in this respect is fairly limited, it can have an impact.status: publishe