A Historical Perspective on Administrative Jurisdiction in Latin America: Continental European Tradition versus U.S. Influence

According to Cassagne, there has been a misinterpretation of the scope of the constitutional sources and their historical bases: he argues that the system of unified jurisdiction in Latin America is mistakenly associated with the U.S. model, whereas in fact the judicialismo puro [supervision of administrative decisions exclusively by the Judiciary] of the Latin-American systems of administrative justice originated in the Constitution of Cadiz of 1812, Article 243 of which imposes an absolute limit on the exercise of jurisdictional functions by bodies or tribunals pertaining to the structure of the Executive Branch.

See CASSAGNE, supra note 9, at 67, 71.

Nevertheless, it is quite likely that the liberal ideas of La Pepa originated in the North-American colonies and England, from which the monist judicial system would also be imported later. According to Congleton, the list of functions of the Legislative Branch contained in Article 131 of Cadiz did not correspond to anything in Continental Europe of 1812 but rather to the U.S. Legislature and thus, implicitly, to the English Parliament.

ROGER D. CONGLETON, EARLY SPANISH LIBERALISM AND CONST.AL POLITICAL ECONOMY: THE CáDIZ CONST. OF 1812 18-19 (2010).

The Reglamento Orgánico of 22 October 1811 of the Junta Grande, considered the first proto-Argentine Constitution, “organically [adopted] the tripartite form of government”.

JOSÉ RAFAEL LÓPEZ ROSAS, HISTORIA CONSTITUCIONAL ARGENTINA [CONST.AL HISTORY ARGENTINA] 143 (2nd ed. 1970); FRANCISCO MIGUEL ÁVILA RICCI, NUEVA CONSTITUCIÓN NACIONAL: DESDE LA HISTORIOGRAFÍA INSTITUCIONAL ARGENTINA [NEW CONST.: FROM ARGENTINA HISTORIOGRAPHY] 122 (1997); Luis R. Longhi, Génesis e Historia del Derecho Constitucional Argentino y Comparado. Buenos Aires: Bibliográfica Argentina, 1945. t. I. nota 4, p. 258 in CONSTITUICIONES IBEROAMERICANAS: [IBERO-AMERICAN CONST.S] 6 n.10 (Néstor Pedro Sagüés ed., 2006).

It is worth pointing out the origin in the U.S. of the Junta Grande of 22 October 1811, as noted by Valadés:

[…] The Secretary of the Government Junta, Mariano Moreno, did a translation of the US Constitution of 1787, to which he made some changes in the numbering and contents. Certain authors consider that study to be a sort of rough draft of the constitution [..] On 18 December 1810, the First Junta interpreted the Reglamento of 25 May and decided that it should also include parliamentary representatives from the inland areas of the Vice-Regency. When the number of its members reached twenty-two in 1811, it changed its name to Conservative Junta (i.and., conserving the rights of Fernando VII), more commonly known as the Second Junta or Junta Grande. [...].

Diego Valadés, Introducción Histórica: Proceso Constitucional Argentino [Historical Introduction: Argentine Constitutional Process], in NéSTOR PEDRO SAGüéS, CONSTITUICIONES IBEROAMERICANAS [IBERO-AMERICAN CONSTS.]: ARGENTINA 4 (2006).

If that thesis is correct, Moreno’s work may be considered the first organic constitutional initiative of the Republic of Argentina.

Id. at 5.

In fact, the above-cited Article 243 of the Constitution of Cadiz (according to which neither the Cortes nor the King could exercise under any circumstances judicial functions, rule itself competent to hear pending cases or even order “juicios fenecidos” to be reopened) and Article 242 (according which the courts alone have the power to apply the laws in civil and criminal cases) still have correlations with the provisions of the 19^th Century Latin-American Constitutions of Chile,

CONSTITUCIóN POLíTICA DE LA REPúBLICA DE CHILE [C.P.] (1828) art. 85.3; CONSTITUCIóN POLíTICA DE LA REPúBLICA DE CHILE [C.P.] (1833) art. 108.

However, the use of the expression “civil and criminal courts” in Article 242 makes it clear that the focus of the provisions is not on preventing administrative dispute resolution by the Executive Branch; rather, the Executive was not supposed to interfere with functions of the Judiciary which, at the time, outside of criminal law, were mainly associated with jurisdiction over private-law cases (even if the public administrative authorities were involved in them), rather than constituting an administrative jurisdiction per se.

Rivero interprets the expression civil rights in Article 92 of the Belgian Constitution of 1831 as follows (in reference to the monist judicial system)

CONST. OF BELGIUM (1831) art. 92, (Belg.); art. 93.

In that respect, the notion of “civil rights and obligations”, as expressed in Article 6 of the European Convention on Human Rights, has always been controversial in the European Court of Human Rights. A draft protocol has been proposed, rewording Article 6 to extend its scope to include any public law issues, but no consensus was reached. This restriction, however, it must be said, is not found in the American Convention on Human Rights, Article 8 of which provides that the guarantees of due process of law are applicable to “rights and obligations of a civil, labor, fiscal, or any other nature”.

See IRENEU CABRAL BARRETO, A CONVENçãO EUROPEIA DOS DIREITOS DO HOMEM ANOTADA [ANNOTATED EUROPEAN CONVENTION OF HUMAN RIGHTS] 150 (4th ed. 2010).

A good deal light is shed on this subject by Article 9 of the Reglamento para el Arreglo de la Autoridad Ejecutiva Provisoria de Chile, of 14 August 1811, considered the first Chilean Constitution:

REGLAMENTO PARA EL ARREGLO DE LA AUTORIDAD EJECUTIVA PROVISORIA DE CHILE [REGULATIONS UNDER THE TEMPORARY EXECUTIVE AUTHORITY OF CHILE], Agosto 14, 1811, (Chile).

What was considered to be a governmental issue and administrative issue is close to what would now be an administrative action and legitimate interest. Accordingly to the scholarly writings at the time, from the point of view of administrative jurisdiction, the following parallel can be drawn: interest versus right; poder gracioso versus poder contencioso; governmental issues versus judicial issues; matters subjects to judicial review versus matters that are not.

TEODOSIO LARES, LECCIONES DE DERECHO ADMINISTRATIVE [LESSONS IN ADMINISTRATIVE LAW] 16, 60, 365 (1852).

From that point of view, the Spanish Constitution of 1812 was not contrary to the French Law of 16 and 24 August 1790 (Loi des 16 et 24 août 1790), according to which judicial functions are forever separate and distinct from administrative functions so that judges cannot, under penalty of judicial misconduct, interfere with the operations of administrative bodies or summon administrative authorities to appear before them by reason of their functions. Nor is the Spanish Constitution incompatible with Chapter V, Article 3 of the French Constitution of 1791, according to which the courts must not interfere with administrative functions or summon administrative authorities before them by reason of their functions.

It is true that the Constitution of Cadiz prohibited the performance of judicial functions by the Executive but its most relevant contribution was that it helped create an administrative jurisdiction in Spain in 1888 (Ley de Santamaría Paredes), since at the time it was out of the question to submit certain issues of administrative law to the Judiciary; in other words, it was not considered appropriate for judges to rule on governmental questions or other issues exclusively pertaining to the public administrative authorities.

Leticia Fontestad Portalés, La Jurisdicción Contencioso-Administrativa en España [Administrative Jurisdiction in Spain], 10 REVISTA CEJ 62, 62-72 (2006) (Braz.).

In this context, the new jurisdictional functions of the Spanish State, now specialised, and the administrative jurisdiction in the judicial sphere, in general, like that of the Land of Baden a few years previously, in 1863,

Gesetz Betreffend die Organisation der Inneren Verwaltung [Law on the Organisation of Internal Administration], Oct. 5, 1863 (Ger.).

In the opinion of Rivero, who recognises the origin of the system of unified jurisdiction over civil and administrative cases in Anglo-Saxon law, the source of inspiration of the Latin-American countries that have consecrated and maintained judicial unity was the Belgian Constitution of 1831. It is true that the laws and Constitution of Belgium did not escape the attention of the Latin-American authors of the period;

T he Belgian law of the time is featured in the following work: AUGUSTO OLYMPIO VIVEIROS DE CASTRO, TRATADO DE SCIENCIA DA ADMINISTRAçãO E DIREITO ADMINISTRATIVO [TREATISE ON THE SCIENCE OF ADMINISTRATION AND ADMINISTRATIVE LAW] 655-88 (1914).

In fact, in the first half of the 19^th Century, in the countries of Hispanic origin and in Brazil, with the advent of its Republic in 1889, the debate that arose in Latin America concerned the lack of independence of French administrative litigation (contentieux administratif).

In Mexico: JOSé MARíA DEL CASTILLO VELASCO, ENSAYO SOBRE EL DERECHO ADMINISTRATIVO MEXICANO [ESSAY ON MEXICAN ADMINISTRATIVE LAW] V2 275 (1875); TEODOSIO LARES, LECCIONES DE DERECHO ADMINISTRATIVO [LESSONS ON ADMINISTRATIVE LAW] (1852); In Brazil: CASTRO, supra note 39.; THEMíSTOCLES BRANDãO CAVALCANTI, INSTITUIçõES DE DIREITO ADMINISTRATIVO BRASILEIRO [INSTITUTIONS OF BRAZILIAN ADMINISTRATIVE LAW] Vol. 2 748-59 (2d ed. 1938).

Margáin Manautou, for examples, recalls that:

the historical background of administrative litigation in Mexico dates back to the Law for the Settlement of Administrative Disputes [Ley para el Arreglo de lo contencioso administrativo] of 25 May 1853, which was influenced by contemporary French legislation, especially the notion of a Council of State - and which had caused a great uproar in the Mexican legal community, so that it was soon declared unconstitutional by the Mexican Supreme Court, which held that it violated the doctrine of Separation of Powers.

EMILIO MARGáIN MANAUTOU, DE LO CONTENCIOSO ADMINISTRATIVO: DE ANULACIóN O DE ILEGITIMIDAD [ON ADMISTRATIVE DISPUTES: ANNULMENT OR ILLEGALITY] 67-70 (12th ed. 2004).

In the latter half of the 19^th Century this debate was becoming obsolete in France and Germany because of the recognition that the administrative jurisdiction could be exercised if it were autonomous from the public administrative authorities even if such jurisdiction is not located in the Judiciary, on the model of the justice déléguée of 1872. According to Sommermann, the discussion that persisted in Continental Europe concerned the model of administrative jurisdiction to be adopted: either monist, typical of common law countries, or dualist, of French origin. It is the dualist version that ended up being successful due to the benefits of specialisation and to the elimination of its main drawback: the lack of independence. It was therefore the jurisdiction specialised in administrative law and autonomous from the public administrative authorities that prevailed in Continental Europe.

Karl-Peter Sommermann, O Desenvolvimento da Jurisdição Administrativa Alemã no Contexto Europeu, [The Development of the German Administrative Jurisdiction in the European Context], in R. PERLINGEIRO ET AL., CóDIGO DE JURISDIçãO ADMINISTRATIVA: O MODELO ALEMãO [CODE OF THE ADMINISTRATIVE JURISDICTION: THE GERMANM MODEL] - VERWALTUNGSGERICHTSORDNUNG (VWGO) 13 (2009).

Taking the example of Brazil, the adoption of the unified judicial system by the Republican Constitution of 1891 is associated with a purely political choice in favour of US liberal constitutionalism, in opposition to the monarchic Brazilian institutions of the time, striking examples of which were the Imperial Council of State and administrative litigation under the system of justice retenue which, for obvious reasons, did not keep up with the evolution of European administrative law (justice déléguée):

CASTRO, supra note 39; CAVALCANTI, supra note 41. The U.S. influence on Brazil at the time may be measured by art. 386 of Decree No. 848 of 1890, which established U.S. law and common law precedents as a subsidiary source for Brazilian jurisprudence (Decreto No. 848, de 11 de Octubro de 1890 (Braz.)).

The doctrine of administrative law of the latter half of the 19^th Century continued to support the version originating in the French Council of State when they favoured backing the Brazilian Constitution of 1824, considering the Judiciary as a power intended for private law and the Executive as a power intended for public law.

See VISCONDE DO URUGUAI, ENSAIOS DO DIREITO ADMINISTRATIVO [ESS AYS ON ADMINISTRATIVE LAW] 29-36 (1862); RIBAS, supra note 45, at 143-65.

It is true that in the late 19^th Century, there were no reasons for Latin America to distance itself from the European model of administrative justice; at the time, it seemed clear that the prohibition of exercise of jurisdiction by the Executive, as enshrined in the Constitution of Cadiz, would not prevent the Latin-American systems from keeping up with the evolution of the French model towards an autonomous administrative jurisdiction. The proof of that is what happened throughout Europe, especially in Spain and Portugal, and above all in Belgium, which abandoned the monist judicial system and where the Council of State exercised administrative jurisdiction without the possibility of appeal.

T here are currently Councils of State with functions of administrative jurisdiction: France, the Netherlands, Belgium, Italy and Greece; cf. the judicial system of administrative jurisdiction with a specific supreme court in the following countries: Germany, Austria, Portugal, Luxemburg, Sweden, Finland, Czech Republic, Poland, Lithuania; there is a judicial system of administrative jurisdiction equipped with a supreme court with common administrative and civil jurisdiction in Spain, Switzerland, Slovenia, Hungary, Romania and Estonia; there is a unified judicial system (monist judicial system) in the United Kingdom, Ireland, Malta and Cyprus; see MICHEL FROMONT, DROIT ADMINISTRATIF DES ÉTATS EUROPéENS [ADMINISTRATIVE LAW OF THE EUROPEAN STATES] 120 et seq. (2006); also see JACQUES ZILLER, ADMINISTRATIONS COMPARéES: LES SYSTèMES POLITICO- ADMINISTRATIFS DE L´EUROPE DES DOUZE [COMPARED ADMINISTRATIONS: THE POLITICOADMINISTRATIVE SYSTEMS OF THE EUROPE OF THE TWELVE] 438-45 (1993) (Fr.).

It fact, in early 19^th Century Latin America, the rise of an essentially judicial jurisdiction became apparent, which, however, gradually become more or less specialised as a sign of reconciliation with its European origin; starting from the early 20^th Century, certain Latin-American Constitutions began recognising the dualist judicial model of jurisdiction, with one jurisdiction specialised in administrative law and others with a non-judicial administrative jurisdiction.

The judicial system that prevailed in Latin America during the 19^th Century, after the independence movements between 1810 and 1831, was not accompanied by an invasive administrative jurisdiction; it tended to restrict itself to examining to disputes (contentieux) – closer to private law

– in a judicial model more closely identified with the United States than with Continental Europe.

19^th-Century Latin America practically did not recognise any administrative jurisdiction in the judicial sphere, as in Belgian law (1831) and German law (1863); nor did it recognise any administrative jurisdiction in the Executive sphere, like French law (1872) and Spanish law (1874). Out of the 19 Latin-American countries of Iberian origin, only four deviated from the judicial system in the 19^th Century, opting instead for autonomous tribunals outside the structure of the Judiciary, although they subsequently back down from their decision: Bolivia (1861-1868, 1871-1878), Panama (1863-1904), Dominican Republic (1874-1880) and Colombia (1886-1914).

The system of unified jurisdiction over civil and administrative cases in Latin America offered no more than the French administrative litigation of the early 19^th Century, because the Executive itself settled the constant disputes about which – quite numerous – issues would be reserved exclusively for the public administrative authorities and immune from the Judiciary (“governmental” issues), as may be observed in the Chilean Constitution of 1833 and Ecuadoran Constitution of 1843.

See CONSTITUCIóN POLíTICA DE LA REPúBLICA DE CHILE [C.P.] (1833) art. 104.5; CONST. OF ECUADOR (1843) art. 52.11.

The fact is that the so-called system of undivided jurisdiction was a logical corollary of the lack of consolidation of administrative law;

According to RIVERO, supra note 6, at 126-127, “an undivided rule and an undivided judge were, for Dicey, the characteristic elements of the rule of law, and the system of administrative law and the principles on which such law is based are undeniably foreign to the spirit and traditions of the British institutions.”

Thus, the origin of the system of undivided jurisdiction or, according to Fromont, of the system of civil jurisdiction,

FROMONT, supra note 47, at 135 et seq. (2006).

The Continental-European model of single-jurisdiction evolved as administrative law became more firmly established; the Judiciary became increasingly specialised, autonomous non-judicial bodies were created, such as the Conseil d’État of 1872, assigned specific powers to rule on cases of public interest; in practice, this helped limit the scope of administrative of actions that were considered at the time immune to the jurisdiction of the courts.

In this context, the regulatory gap left by the monist judicial system, with quasi jurisdictional immunity of the public administrative authorities, became more obvious as administrative law developed.

Rivero warns of the ideology unavowed Polizeistaat throughout the 20th Century, in the United Kingdom, in the name of royal prerogatives, in the United States in the name of state sovereignty; and, in France, the theory of acts of government: RIVERO, supra note 6, at 159-60.

The creation of the Interstate Commerce Commission (ICC) in 1887 in the United States marked the beginning of the administrative tribunals, a combination of the unified judicial model with adversarial proceedings in the area of public administrative authorities.

See Richard J. PIERCE ET AL., ADMINISTRATIVE LAW AND PROCESS 214 (4th ed. 2004); see also MAIRAL, supra note 53, at Vol. 2 714.

An irony of history is involved in the evolution of common law towards judicial review which brought an administrative jurisdiction into the heart of the Executive Branch

Speaking ironically, Rivero concluded that there is a dualist jurisdiction in the English judicial system (RIVERO, supra note 6, at 137).

Monist/unified-jurisdiction (body or court in a non-specialised judicial structure, with a constitutional basis)

1811- : Chile

1811- : Argentina

1811- : Venezuela

1813- : Paraguay

1818- : Mexico*

1821-1886: Colombia

1821- : Costa Rica

1823- : Peru

1824- : El Salvador

1824-1927: Guatemala

1825-1965: Honduras

1826-1861: Bolivia

1830-1929: Ecuador

1830-1934: Uruguay

1841-1863: Panama

1854-1874: Dominican Republic

1868-1871: Bolivia

1869- : Cuba

1878- : Bolivia

1880-2010: Dominican Republic

1884-1939: Nicaragua 1891- : Brazil

1948-1974: Nicaragua

1956- : Panama

1979- : Nicaragua

1982- : Honduras

1992- : Ecuador

Dualist jurisdiction (body or court in a specialised judicial structure with a constitutional basis)

Single Supreme Court (body or court in a specialised structure and subject to a Supreme Court of another structure)

1939-1948: Nicaragua

1941-1945: Panama

1979-1992: Ecuador

1945- : Guatemala

1974-1979: Nicaragua

2010- : Dominican Republic

Administrative Supreme Court (body or court and a Supreme Court in a specialised structure)

1914- : Colombia

Autonomous (body or court in a nonjudicial structure, with a constitutional basis and autonomous from the challenged authority)

1861-1868: Bolivia

1863-1904: Panama

1871-1878: Bolivia

1874-1880: Dominican Republic

1886-1914: Colombia

1927-1945: Guatemala

1929-1979: Ecuador

1934- : Uruguay

1937- : Mexico*

1945-1956: Panama

Non-autonomous (body or court in a non-judicial structure, with a constitutional basis, and non-autonomous vis-à-vis the challenged authority)

Autonomous (body or court in a nonjudicial structure, with a constitutional basis and autonomous from the challenged authority and subject to a judicial body or court)

1965-1982: Honduras

Non-autonomous (body or court in a non-judicial structure, with a constitutional basis, non-autonomous vis-à-vis the challenged authority and subject to a judicial body or court)

The predominance of the monist judicial system is not the only sign of U.S. influence to be found in the administrative justice systems of Latin-American countries; the expression due process of law, which was first provided for in the United States by the Bill of Rights (1791 Amendment to the U.S. Constitution), started to become incorporated in a number of different Latin-American constitutions and laws in the latter half of the 20^th Century. Such is the case with Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guatemala, Mexico, Nicaragua, Peru, the Dominican Republic, Uruguay and Venezuela.

However, due process of law, which has been described in common law countries as procedural guarantees prior to administrative decisions that impose restrictions on individual rights,

See, Murray’s Lessee v. Hoboken Land & Inprovement Co., 59 U.S. 272 (1856); Goldberg v. Kelly, 397 U.S. 254 (1970); see also, Administrative Procedure Act §2, 5 U.S.C §§ 551-559 (1946)

The Fifth Amendment of 1791 to the U.S. Constitution reads as follows:

U.S. CONST. amend. VI, §3.

The Fourteenth Amendment of 1868 has a similar orientation in Section 1:

[...] no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. CONST. amend. XIV, §2. (emphasis added)

These laws are rooted in Article 39 of the Magna Carta of 1215, whose main legacy has been the rule that a judgement must precede enforcement of penalties:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land (emphasis added)

T ranslation available from the The British Library Board. Available at: <http://bit. ly/1zrb39q>. Original text in Latin: “Nullus liber homo capiatur vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terrae”.

The expression due process of law is found for the first time in the Liberty of Subject Act (28 Edward 3), de 1354, which reads as follows, verbatim: “No man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law”.

LIBERTY OF SUBJ ECT ACT (28 Edward 3). On this subject, see FREDERIC JESUP STIMSON, THE LAW OF THE FEDERAL AND STATE CONSTITUTIONS OF THE UNITED STATES: WITH AN HISTORICAL STUDY OF THEIR PRINCIPLES, A CHRONOLOGICAL TABLE OF ENGLISH SOCIAL LEGISLATION, AND A C OMPARATIVE DIGEST OF THE CONSTITUTIONS OF THE FORTY-SIX STATES 32 (1908).

In fact, due process of law, from the procedural point of view, in the genuine sense of common law, has never had any exact equivalent in Continental European law or other international and regional legal systems. It is even confused with effective judicial protection or the right to a fair trial.

See Osvaldo Alfredo Gozaíni, El Debido Proceso Constitucional: Reglas Para el Control de los Poderes Desde la Magistratura Constitucional [Constitutional Due Process: Rules for the Control of Powers From Constitutional Court Judges] 7 REVISTA MEXICANA DE DERECHO CONSTITUCIONAL (2002). See also Gonzalo Garcia Pino & Pablo Contreras Vasquez, El Derecho a la Tutela Judicial y al Debido Proceso en la Jurisprudencia del Tribunal Constitucional Chileno [The Right to Judicial Protection and Due Process in the Case Law of the Chilean Constitutional Court] 11(2) ESTUDIOS CONSTITUCIONALES [CONSTITUTIONAL STUDIES] 229-82 (2013). See also, Luiz Guilherme Marinoni & Daniel Mitidiero, Direitos Fundamentais Processuais [Fundamental Procedural Rights] in CURSO DE DIREITO CONSTITUCIONAL [COURSE IN CONSTITUTIONAL LAW] 615 (Ingo Wolfgang Sarlet et al., 2012).

The [French] Declaration of the Rights of Man and of the Citizen of1789 had a tremendous impact on Continental European public law; although its origins may be associated with the declarations of the north American colonies,

GEORG JELLINEK, THE DECLARATION OF THE RIGHTS OF MAN AND OF CITIZENS: A CONTRIBUTION TO MODERN CONSTITUTIONAL HISTORY 2-7, 13-21 (1901).

Similarly to the French Declaration of 1789, in the [United Nations] Universal Declaration of Human Rights (1948), the previous fair trial as a prerequisite for enforcement of state actions restricting individual rights is limited to criminal charges. On other matters, the Declaration of 1948 refers to a fair defence for the determination of rights and obligations of individuals, which amounts to declaring the right to judicial protection for conflict-resolution.

UNIVERSAL DECLARATION OF HUMAN RIGHTS, ART. 10 (1948). (Everyone is entitled in full equality to a fair and public hearing by an autonomous and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him).

And that is the predominant perspective in subsequent international conventions on what, in common law, was originally considered procedural due process of law. If, according to the letter of the U.S. Constitution, it was considered necessary for the jurisdiction (fair trial) to precede state decisions restricting any kind of individual rights (criminal charges, restriction on property rights, etc.), under the international norms, with a discreet but meaningful change in wording, only criminal charges require a previous fair trial.

T he principle audi et alteram partem is considered to be a common law principle of fundamental natural justice in criminal law which was subsequently extended to disciplinary administrative sanctions in Continental Europe, which became known with the Téry Decisions (Conseil d´État, 20.6.1913, S. Téry. Available at: <http://bit. ly/1Kw6kWd>), and with the Higher Administrative Court of Saxony (SächsOVG, Decision of 24 Oct. 1908, Jahrbuch, vol. 13 p. 97). See Aldo Sandulli, et al. Il Procedimento in CORSO DI DIRITTO AMMINISTRATIVO. [ADMINISTRATIVE LAW COURSE] vol 4. DIRITTO AMMINISTRATIVO COMPARATOR [COMPARATIVE ADMINSTRATIVE LAW] 111, 113, 132 (Sabino Cassese ed., 2007).

The fact that the international norms generally refer to “determination” (recognition) of rights, for the purposes of being submitted to an autonomous and impartial tribunal, does not necessarily require a trial that must be prior to the administrative decisions restricting individual rights.

The European Convention on Human Rights (1950) contains the following passage:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an autonomous and impartial tribunal established by law.”

EUROPEAN CONVENTION ON HUMAN RIGHTS OF 1950. ART. 6.1. (1950).

The International Covenant on Civil and Political Rights (1966) provides as follows:

In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, autonomous and impartial tribunal established by law.

Art. 14.

The African Charter of Human and Peoples’ Rights (1981) maintains that “Every individual shall have the right to have his cause heard”.

The Charter of Fundamental Rights of the European Union (2000) provides that “everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal”, and that:

everyone is entitled to a fair and public hearing within a reasonable time by a fair and autonomous and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

EU CHARTER OF FUNDAMENTAL RTS., art. 47.

Finally, in the American Convention on Human Rights (1969), Article 8 on the Right to a Fair Trial provides as follows:

Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, autonomous, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature

AM. CONVENTION ON HUM. RTS., art. 8.1.

In fact, Article 8.1 of the American Convention follows the international trend and departs from the concept originating in common law to the effect due process of law is a set of prior procedural guarantees that must necessarily be prior to any public action restricting individual rights and thus limiting itself to criminal charges.

In recent years, various Latin-American constitutional norms have started to make general references to due process of law, which usually conceive of it as inherent not just in judicial actions but also in administrative actions, apparently in keeping with the spirit of the US Constitutional Amendments of 1791 and 1868.

Article 29 of the Colombian Constitution 1991 establishes that “due process is applicable to every class of judicial and administrative action”;

According to Article 5 of the Brazilian Constitution of 1988, “no one shall be deprived of freedom or of his assets without due process of law” (subsection LIV), and “litigants in judicial or administrative proceedings and the accused in general shall be assured adversary proceedings and a full defence, with the associated means and resources” (subsection LV).

According to Article 49 of the Venezuelan Constitution of 1999, “due process is applicable to all judicial and administrative acts […]”; in the Dominican Republic, Article 69 of the Constitution of 2010 refers to “effective judicial protection and due process […]” and subsection 10 stipulates that “the rules of due process shall apply to every type of judicial and administrative acts”.

Article 34 of the Nicaraguan Constitution of 1995 specifies that:

everyone is a proceeding has the right, under equal conditions, to due process and effective judicial protection and, as part of these, the following minimum guarantees … The minimum guarantees established in due process and effective judicial protection in this trial are applicable to the administrative and judicial proceedings. (emphasis added)

In Ecuador, Article 23.27 of the Constitution of 1998 provides that “the minimum guarantees established in due process and in effective judicial protection in this article applicable to administrative and judicial proceedings”; in the Constitution of 2008, Article 169 reads as follows:

The procedural system is a means of achieving justice. The procedural rules shall establish the principles of simplified, uniform, effective, immediate, speedy and economic trials, and shall apply the guarantees of due process. Justice shall not be sacrificed for the mere omission of formalities.

Article 76 of the Constitution of 2008, in turn, establishes that:

In every proceeding that determines any type of rights and obligations, the right of due process shall be ensured, which shall include the following basic guarantees: 1. It is the responsibility of every administrative or judicial authority to ensure compliance with the applicable laws and the rights of the parties. (emphasis added)

In the following section, we shall discuss countries that generally provide for due process of law. Mexico, in Article 18 of the Constitution of 1917, requires that “the guarantee of due process be observed in all procedures applied to adolescents”; in Bolivia, with the Constitution of 2008, Article 115 II, stipulates that “the State guarantees the right to due process, and a universal, speedy, timely, free, and transparent system of justice and defence, without delays”; or Chile, with Article 19 of the Constitution of 1980, provides that:

every judgement by a body that exercises jurisdiction must be based on a duly processed prior proceeding. Legislators are therefore always responsible for establishing guarantees of a rational and fair procedures and investigation.

Article 139 of the Peruvian Constitution of 1993 refers to “observance of due process and jurisdictional protection […]”; and, finally, in Guatemala, Article 53 of the Constitution of 1965 includes a general provision according no one may be deprived of property without due process of law; and, Article 12 of the current Constitution of 1985 refers to due process of law as follows:

right to defence: the defence of the individual and of his rights is inviolable. No one maybe convicted or deprived of his rights without having been summoned, heard or convicted in a legal proceeding before a predetermined competent tribunal or judge. (emphasis added)

Regarding legislation, Argentina is worth mentioning, with its Law 19.549/72 (Ley de procedimientos administrativos), which provides, in Article 1 (f) that individuals involved in administrative procedures have the right to procedural due process; in Uruguay, with its Article 5 of the Ley de procedimientos administrativos, according to which individuals involved in administrative procedures enjoy the rights and guarantees inherent in due process.

In fact, there are many points in common between procedural due process of law, in the form in which it evolved in the United States, and the right to a fair trial of the European Convention of Human Rights, especially the fact that both of them are applicable to administrative cases, as originally provided for by U.S. constitutional law.

In that respect, despite the controversy surrounding the expression civil rights and obligations in Article 6.1 of the Human Rights Convention in relation to administrative law conflicts, the European has interpreted this clause to be binding not only on the courts:

the Court is not prevented from qualifying a particular domestic body, outside the domestic judiciary, as a “court” for the purpose of the Vilho Eskelinentest. An administrative or parliamentary body may be viewed as a “court” in the substantive sense of the term, thereby rendering Article 6 applicable to civil servants’ disputes. The conclusion as to the applicability of Article 6 is, however, without prejudice to the question of how procedural guarantees were complied with in such proceedings.

Volkov v. Ukraine, 2010 Eur. Ct. H.R. 1. Along the same lines (as a paradigm). Eskelinen v. Finland. 2007 Eur. Ct. H.R. 1, See RENE CHAPUS, DROIT DU CONTENTIEUX ADMINISTRATIVE [LAW OF ADMINISTRATIVE DISPUTES] 136-38 (12th ed. 2006). See also SERGIO BARTOLE ET AL., COMMENTARIO BREVE ALLA CONVENZIONE EUROPEA PER LA SALVAGUARDIA DEI DIRITTI DELL´UMO E DELLE LIBERTà FONDAMENTALI. [SHORT COMMENTARY ON THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS] 176 (2012); BARRETO, supra note 30.

The Inter-American Court of Human Rights follows the same orientation as the European Court: it interprets the expression “Garantías Judiciales” or Judicial guarantees (translated as “Right to a Fair Trial” in the official English version) contained in the title of Article 8 of the Inter-American Convention does not prevent other state bodies unrelated to the Judiciary from trying the merits of the case and from [being required to] observe the guarantees of due process of law.

Constitutional Court v. Peru, Judgment of 31 Jan. 2001. 01. Series C No. 142.

When examining a decision of the Uruguayan Administrative Court, the Inter-American Court point out that:

it was very specific and precise in establishing that certain components of the guarantees necessary for ensuring due process are also applicable to in the non-judicial sphere in a context in which issues related to personal rights may be under discussion. Thus, the Court has understood in its previous case law that the characteristics of impartiality and independence […] should be mandatory for any body in charge of ruling on the rights and obligations of individuals. With that in mind, […] they should not only correspond to strictly jurisdictional bodies but the provisions of Article 8.1 of the Convention are also applicable to administrative decisions.

Vélez Loor v. Panama, Preliminary Defences, Merits, Damages and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 218, ¶ 108 (Nov. 23, 2010) (emphasis added).

There is one characteristic of due process of law, however, conceived in 1792, that is irreconcilable with the right to a fair trial [processo efetivo], as interpreted by the European Court, that is of great importance for understanding the current stage of administrative justice in the Latin America: the prior nature of procedural due process of law. It does not form part of the legal tradition of Continental Europe or of Latin-American administrative law: the existence of a proceeding (trial) that is conducted under the responsibility of an autonomous or quasi-judicial administrative authority and generally precedes the enforcement of the relevant administrative decision.

See Asimow, supra note 9.

According to the European Court case law, if the national laws provide means of appealing an administrative decision, they should be subject to the rules of Article 6.1 of the Convention; thus, if such means are absent, the Convention is applied only in the appellate phase, which demonstrates that a prior proceeding is not a sine qua non for administrative decisions to arise; moreover, if the appeal is made before the Judiciary, the independence of the decision-making administrative authority even becomes dispensable.

In this context, the right to a fair trial implies a means of appeal rather than a constituent element of the administrative decision. The practical difference is substantial: while under the system of a right to a fair trial, the challenged administrative decision only ceased to be effective ab initio in the case of periculum in mora and fumus boni iuris (for which the claimant bears the burden of proof), in an interim relief measure, under the system of due process of law, the administrative decision does not enter into effect until after the completion of the preliminary proceeding, and inversely, the exception to that rule depends on periculum in mora and fumus boni iuris, both of which must be proven by the the administrative authority

See North American Cold Storage Co. v. Chicago, 211 U.S. 306 (1908).

The Latin-American doctrine according to which prior administrative due process (debido procedimiento administrativo) is a sine qua non for the elaboration of administrative decisions restricting individual rights is merely rhetorical.

Regarding the consensus in the Latino-American doctrine on the application of due process. See AUGUSTIN GORDILLO, TRATADO DE DERECHO ADMINISTRATIVE [TREATISE ON ADMINISTRATIVE LAW] vol. 2, 284 (2004); ALLAN R. BREWER-CARIAS, PRINCIPIOS DEL PROCEDIMIENTO ADMINISTRATIVO EN AMéRICA LATINA [PRINCIPLES OF ADMINISTRATIVE LAW IN LATIN AMERICA] 262 (2003); ERNESTO JINESTA, DEBIDO PROCESO EN LA SEDE ADMINISTRATIVA: DERECHO ADMINISTRATIVO EN EL SIGLO XXI, [DUE PROCESS IN THE ADMINISTRATIVE SPHERE] vol. 1, 581-611 (2013); Alan E., Vargas Lima, Desarrollo Jurisprudencial de la Ley de Procedimiento Administrativo en Bolivia [Jurisprudential Development of the Law of Administrative Procedure in Boliva] LA RAZóN, (May 13, 2014, 12:00 A.M.), http://bit.ly/150BMf7. The Model Code of Administrative Proceedings – Judicial and Non-judicial – for Ibero-America lays down principles governing due process of law for judicial proceedings [art. 37] and implicitly for non-judicial proceedings [arts. 6 and 7]; an administrative proceeding is considered to be any proceeding, subject to guarantees of an adversarial hearing and a full defence, that is intended to prepare administrative decisions that may affect the interests or rights of private citizens, as well as any procedure in which a public- or private-law dispute arises between an administrative authority and a citizen, or a dispute between individuals or legal entities that may be resolved by an administrative authority [art. 3]. Grinover et al., supra note 62.

Even in the late 19^th Century, the administrative jurisdiction was still confused with the administrative authorities’ power of autotutela [power to correct its own illegal mistakes], that is to say that administrative disputes were tried by the administrative authorities themselves.

See parts I. B & C.(especially note 45 supra).

The proceeding is inherent in the jurisdiction, and neither of them can dispense with autonomous management in relation to the parties to the dispute.

See OSKAR VON BüLOW, DIE LEHRE VON DEN PROCESSEINREDEN UND DEN PROCESSVORAUSSETZUNGEN [THE DOCTRINE OF PROCEDURAL DEFENCES AND PREREQUISITES FOR TRIAL] 1-12 (Emil Roth Giesen ed., 1868).

Independence was not only the spark that gave rise to administrative justice in the 19^th Century and to the development of specific administrative law, but even today it is considered to be an element inseparable from the jurisdictional function. Independence is expressly incorporated into a number of different national and international norms, such as the European Convention of Human Rights (Article 6.1) and the American Convention on Human Rights (Article 8.1).

It is therefore possible to argue that in the period in which it was inconceivable for administrative jurisdiction to be autonomous from the public administrative authorities, the expression processo administrativo (administrative proceeding) was inapplicable. The expression of will of the administrative authorities involving the citizen could be called a procedimento administrativo (administrative procedure), although that term would be more appropriate for administrative actions that were interna corporis or that could not place the rights or interests of individuals at risk.

By gaining independence vis-à-vis the administrative authorities, the administrative jurisdiction tended to move away from the Executive, and so did the corresponding (administrative) proceeding. In the case of an administrative jurisdiction before the Judiciary, the processo administrativo (administrative proceeding) should be qualified by the term judicial: processo administrativo judicial (judicial administrative proceeding).

However, the jurisdiction is not always before the Judiciary, as, for example, in the system of non-judicial administrative jurisdiction (justice déléguée), which currently exists in Uruguay and Mexico. According to Monroy, “the dilemma of jurisdiction is not who exercises or personifies it but what it fundamentally means”.

JUAN F. MONROY GáLVEZ, TEORíA GENERAL DEL PROCESO [General Theory of the Trial]; 419 (2009).

At any rate, in this case, the expression processo administrativo [administrative proceeding] would be correct in relation to a non-judicial administrative jurisdiction and, to differentiate it from a processo directed by the judicial authorities (which would also be a fair trial), it is called a nonjudicial administrative proceeding (processo administrativo não judicial).

However, not infrequently in certain Latin-America legal systems the processo administrativo is associated with situations in which there is no autonomous jurisdiction or, more precisely, where there are no guarantees of due process of law (a fair trial); and vice-versa: procedimento administrativo [administrative procedure] is used to refer to situations in which there is an autonomous jurisdiction.

According to Manuel María Diez, “algunos autores usan los términos proceso y procedimiento como sinónimos. Esta posición es insostenible, ya que no se pueden identificar ambas instituciones ignorando el problema que presentan” [“certain authors use the terms “proceso” and “procedimiento” as synonyms. That position is untenable since the two insitutions cannot be confused without being aware of the resulting problems]. PEDRO ABERASTURY & MARIA ROSA CILURZO, CURSO DE PROCEDIMIENTO ADMINISTRATIVE, 17 (1998).

In the Brazilian legislation,

Lei no. 9.784, de 29 de Janeiro de 1999 (Law on federal administrative proceedings).

In Continental Europe, the expression processo administrativo (administrative proceeding) is used to refer to the courts or to a proceeding in progress before an autonomous or non-judicial authority: a procedimento administrativo is a procedure that is carried out with a body that lacks autonomous jurisdiction.

Administrative law in Latin America is more heavily influenced by the European tradition than by the spirit of the laws of due process. In Latin America, the system of undivided jurisdiction prevails and its courts commonly make up for the absence of prior due process of law by means of broad judicial review in which those same guarantees are provided.

See TRF2, AC 2003.51.03.002508-3, Fed. App. Reporting Judge Aluisio Mendes: [...] despite the fact that the judgement and now the decision appealed against acknowledged an irregularity in the administrative act which split [the deceased’s] pension to the benefit of the life companion, namely the failure to notify the widow, that irregularity was found to be completely irrelevant when submitted to the scrutiny of the Judiciary, so that there is no obstacle to upholding the above-mentioned act.” (Available at: <http://bit.ly/1q7mSOy>).

In addition, the reality of the Latin-American administrative authorities is not compatible with a system of autonomous or quasi-autonomous authorities. The few examples are in the area of access to official information, supported by the Model Inter-American Law on Access to Public Information,

ORGANIZATION OF AMERICAN STATES (OAS). Plenary Session 4, AG/RES. 2607 (XL- 0/10) Model Inter-American law on access to Public Information. WASHINGTON, June 8, 2010.

The classic border between administrative functions and jurisdictional functions, according to Monroy,

is provided by the primary and secondary effect that they produce, respectively, in the area of social relations. The administrative activity is primary insofar as it is designed to be performed immediately and directly vis-à-vis citizens; on the other hand, jurisdictional activity is secondary: i.e., it is only present when laws that are intended to be complied with spontaneously, including administrative laws and the actions of the authorities are rejected by citizens and a mechanism is necessary to ensure their effectiveness or compliance in a voluntary or forced manner.

GáLVEZ, supra note 189, at 418.

This explains the reluctance to admit the primary jurisdiction, i.e., a jurisdiction prior to the administrative decision and, especially, as an integral part of it.

This situation is not changed by the case law of the Inter-American Court of Human Rights which, following the example of the European Court, requires a fair trial (effective proceeding) by an autonomous tribunal for administrative cases within the public administrative authorities.

See the precedents in note 180 supra.

In reality, regarding the procedure prior to restrictive administrative decisions, the Inter-American Court decided that:

the guarantees contemplated in Article 8.1 of the Convention are also applicable to cases in which a certain public authority adopts decisions that rule on such rights,

See Case of the Constitutional Court v. Peru, Judgement of 31 January 2001. 01. Series C No. 71, para. 71, available athttp://bit.ly/1UwcKLE; Case of Yatama v. Nicaragua, ¶149, available athttp://bit.ly/1iW2yHU; and the Case of Claude Reyes and others v. Chile, ¶119, available athttp://bit.ly/1LSjyMB.

The scholarly writings of Hispanic Latin America have preferred the expression debido procedimiento legal to differentiate it from due process of law, which is inherent only in a judicial proceeding (trial) conducted before an autonomous body. However, besides the risk of confusion with procedural due process of law (the counterpart of substantive due process of law), it fails to answer the essence of the question: Is an (autonomous) jurisdiction inherent in an initial administrative decision or not?

There can be no doubt that autonomous jurisdiction is not an exclusive function of the Judiciary; it can be exercised by the Executive. It would be mere speculation to project the present debate into a past period when the Judiciary supposed to devote itself exclusively to questions of private law and the Executive to public law (ruling on disputes, as well) – at the time, an autonomous administrative decision-making body was inconceivable.

It is therefore time to confront the central topic of this article: the prior nature that is required for observance of due process of law in the acts of the public administrative authorities, as expressed in U.S. administrative and constitutional law,

See RICHARD J. PIERCE, ET AL., ADMINISTRATIVE LAW AND PROCESS 231 (4th ed. 2004). Regarding the essentially jurisdictional nature of the preparatory administrative proceedings for administrative decisions in the United States, see ODETE MEDAUAR, A PROCESSUALIDADE NO DIREITO ADMINISTRATIVO [THE NATURE OF PROCEEDINGS IN ADMINISTRATIVE LAW] 83 (2d ed., 2008).

Is due process of law, through jurisdiction, a prerequisite for the formation of an administrative decision restricting individual rights under Latin-American law?

In reality, according to the letter of most of the laws in force in Latin America, what is required is for the administrative decision to originate from a fair proceeding, in order words, observance of the prior guarantees of due process of law is a condition precedent for the enforcement of administrative decisions. That is the mens legis.

In this context, if the State requires but does not provide for prior jurisdiction by means of a non-judicial administrative proceeding offering the guarantees of a fair trial, the logical corollary will be for judicial proceeding to perform that function and to serve as a protective instrument prior to the enforcement of an administrative decision restricting an individual’s rights; this, in turn, would to undesirable results, as shown in the introduction to this paper: exacerbated judicial review, made even worse by a monist judicial system with non-specialised judges (although there are occasionally specialised bodies in the monist system, the judges have not been organised in a specialised career path).

It is insufficient to argue that compliance with the due process of law clause could be ensured even without a prior non-judicial administrative proceeding if a rejected claimant party could have recourse to a judicial means of challenging the decision, unless that judicial means of challenge automatically (unconditionally) suspended the enforceability of the disputed administrative decision and also involved a trial with full powers of review; that is the only way that would make it equivalent to a judicial (or essentially jurisdictional) proceeding prior to an administrative decision restricting the rights of an individual.

Regarding the automatic suspensory effect on the implementation of an administrative decision created by filing a judicial appeal, see RICARDO PERLINGEIRO & KARL PETER SOMMERMANN, EURO-AMERICAN MODEL CODE OF ADMINISTRATIVE JURISDICTION: ENGLISH, FRENCH, GERMAN, ITALIAN, PORTUGUESE AND SPANISH VERSIONS (2014).

From a different perspective, regarding administrative decisions made at the request of an individual, the question has now been examined whether the petitioner should have the option of [first] exhausting the recourses in the non-judicial administrative channels or else initiate judicial proceedings immediately.

See id. Article 32.

On the other hand, from a more rigid perspective, to affirm that the prior administrative appeal as a prerequisite for legal action is necessary on the grounds that the authorities that the authorities have the exclusive right to reverse their decisions

See RICARDO PERLINGEIRO ET AL., Principes Fondamentaux et Règles Génerales de la Juridiction Administrative [Fundamental Principles and General Rules of Administrative Jurisdiction], 163 REVISTA DE PROCESSO, at 262 (2008).

Thus, there are two possibilities: either the proceeding is started at the initiative of petitioner appealing against a decision denying his petition that was issued at the end of a fair proceeding conducted by autonomous authorities, or else such a proceeding becomes merely decorative and should be discarded. However, as in the previous situation (proceeding initiated ex officio), if a non-judicial administrative appeal results in another decision against the petitioner in the appellate phase, then we should rethink the scope– intensity – of appropriate judicial supervision to avoid the risk of creating overlapping jurisdictions.

It would lead to an undesirable duplication of jurisdictions to a adopt a fair and impartial hearing (procedural due process) prior to the [enforcement of the] administrative decision, while at the same time maintaining a judicial system of administrative jurisdiction (monist or dualist) or a nonjudicial jurisdiction with broad powers of review (exhaustive review), in both cases, a posteriori to the administrative decision.

ASIMOW, supra note 9. MAIRAL, supra note 155, at 714; JULIO V. GONZáLEZ GARCíA, El Alcance del Control Judicial de las Administraciones Públicas en los Estados Unidos de América [The Scope of Judicial Revew of Public Administrative Agenices in the United States of America] 37 (1996).