On the Right to Judicial Proceedings : Compability of the Prohibition to Appeal with the European Convention

The possibility of judicial proceedings of administrative decisions are considered to be an important guarantee of legal certainty for individuals. Judicial proceedings are considered so important that the European Convention for the Protection of Human Rights and Fundamental Freedoms has provided for a right to judicial proceedings for civil rights and for criminal charges. The European Court of Human Rights has established a number of criteria that must be met in order for a right to judicial proceedings is considered to exist. Due to the imprecise design of the criteria and a lack of definitions, the criteria are difficult for national courts to apply. For the national courts, this is causing major problems. It is possible to classify something as a right or as a criminal charge only if the European Court of Human Rights makes a statement. Despite the fact that according to the Convention there is a right to judicial proceedings, there is sometimes a prohibition on appeal to national law which means that certain decisions may not be appealed. The national supreme courts has stated that such a prohibition on appeal may need to be set aside if it is contrary to the Convention. This order does not appear other than in case law, which makes the order appear contradictory. This is because the legislation provides for a prohibition to appeal on a certain decision and the courts at the same time can accept a judicial proceeding with reference to the requirements of the Convention. The current order means that it is difficult for individuals to understand that a decision with a prohibition to appeal can, after all, sometimes be appealed. The system is problematic, not only for individuals but also judges and decision-makers of the administrative authorities who must understand the regulation and be able to apply it. The Supreme Administrative Court has stated that it is not possible to give a general statement regarding all prohibitions on appeal. An examination must take place in relation to each individual provision. Such a system is not only unpredictable but also complicated and expensive. The conclusion is that the current system is inappropriate. Most prohibitions on appeal in Swedish law are in conflict with the Convention. There is a high risk that not all judges will reach the same conclusion in the examination of whether the prohibition on appeal should be set aside and it entails that legal certainty is undermined. This paper proposes a change to the system which means that the national prohibitions on appeal should be completely removed. Instead, the appealability of administrative decisions should be examined in the light of 41 § of the Administrative Procedure Act (SFS 2017:900).