REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (recommended length: 4 pages). 3. Please write in English or French. Should this not be possible, the report can be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary shall contain a synthesis of the most important information of the report. 6. Please note that NO NAMES, neither yours nor the ones of the persons you met during your exchange, should appear in the report in order to ensure anonymity 1. Initials can be used when necessary. Identification of the participant Name: First name: Nationality: SPANISH Country of exchange: AUSTRIA Publication For dissemination purposes and as information for future participants in the Programme please take note that, unless you indicate otherwise, EJTN may publish your report in its website. In this case the report will remain anonymous and your name and surname will not appear. To this aim, please do not mention any names in the reports. Initials can be used instead. Please tick this box if you do not wish for your report to be published For completion by EJTN staff only Publication reference: 1 To that purpose, the first page of this report will be taken out before any possible publication Réseau Européen de Formation Judiciaire/ (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 For completion by EJTN staff only Publication reference: Identification of the participant Nationality: SPANISH Functions: ADMINISTRATIVE JUDGE Length of service: 19 YEARS Identification of the exchange Hosting jurisdiction/institution: INDEPENDENT ADMINISTRATIVE TRIBUNAL City: KLAGENFURT Country: AUSTRIA Dates of the exchange: 29/10/12-09/11/12 Type of exchange: one to one exchange group exchange general exchange specialized exchange (please specify : ) PROGAME OFF THE EXCHANGE REPORT The exchange programme took place primarily in Klagenfurt, the capital of Carinthia, where the institution that received me is located (Unablängige Verwaltunggssenate in den Ländern (UVS) wich means Independent Administrative Review Panels in the Länder), and where I had the opportunity to get to know the method of working of such a Tribunal from both a theoretical and practical point of view. There I had the opportunity to attend the different hearings that were scheduled. From the start, my exchange counterpart and colleague introduced me to the President and the Vicepresident of the Independent Administrative Tribunal of Klagenfur. And after that, there was a formal meeting with all the judges (a panel of twelve) and there I had the opportunity to talk about my experience and professional life and to share impressions with all of them. My colleague opened up an entire office to me, complete with a computer and documentation about the Austrian legal system. This office was at my disposal throughout my entire stay of this exchange visit.

3 I also had meetings with other members of the Court, such as the person in charge of the Register Office, the Head of Evidences, who explained to me her job, statistics, procedures, and I was able get a general impression of the work at the UVS. Not only did the judge who was responsible for me offer support, but so did her colleagues, who gave me a warm welcome and offered me their assistance. They helped me to understand the operations of the Austrian administrative system. They explained to me the areas of their jurisdiction and the development of the hearings, which I had the opportunity to attend. I was even able to examine the files previously. These hearings were related to traffic issues, protection of animals, or social security tax in the case of migrant workers, among other areas. During my stay in Klagenfurt, I was also able to visit the headquarters of the civil and criminal Courts and to attend a hearing of a jury trial, accompanied by the President, who introduced me to one of the judges responsible for the case and explained the development of the hearing which was on a case of exaltation of national socialism, which I found extremely interesting. In the last part of my exchange programme, my colleague organized a stay in Vienna, which was an added incentive during my visit. There, I was assisted by members of the Court of Vienna, and in addition to that Court, I visited the Administrative Court, where we were received by one of the magistrates, who explained the organization, including the kinds of cases they were responsible for, as well as the makeup of the Court, among other subjects. He kindly accompanied us to visit the building, which, until recently, was shared by the Constitutional Court, and its elegant and stately dependencies. And I also had the opportunity to visit this last Court, where I was received by the General Secretary, who explained to me in detail the workings of this Court, its origins, functions that are developed and the appointment system of its members, among other aspects. I was also able to visit the impressive building, recently renovated, to where they have recently been transferred. I was also allowed to inspect the Palace of Justice building. THE HOST INSTITUTION The UVS are administrative agencies of the Länder, each of the nine Länder has one panel. They are not Courts under Austrian Constitution but they exercise quasi-judicial functions, and the members are not bound by any instructions, although they are appointed by the Land governments and not for unlimited terms (although a minimum of six years). As in Spain, the UVS have jurisdiction only after all internal administrative appeals have been exhausted. They generally do not function as a preliminary tribunal. Judicial decisions are taken by individual members or by small 3-person senates. It depends on the case, and the workload is to be distributed according to a fixed schedule set in advance. Their jurisdiction includes procedures concerning administrative infractions, complaints against acts of immediate administrative instruction and compulsion, complaints for failure to make a timely decision and other cases. A Reform Act of Administrative Jurisdiction, which is going to be in force in 2014, allows each Land to have its own Land Administrative Court in order to replace the Independent Administrative Review Panels, and also to have more jurisdiction. The Administrative Court (Verwaltungsgerichtshof) function in several areas as a second level of appellate Court above the Independent Administrative Tribunals, and the Court s function is principally cassatory. This Court, with a President and a Vice-President, works in panels. As a rule, a panel has five

4 members, but in some cases, like those of administrative criminal law, rejection of inadmissible complaints, or questions that have already been suitably clarified, only three members participate. All judges must have earned law degrees and have a minimum of ten years of legal experience. At least one third of the members must have passed the judge s examination, and at least one quarter should be from the Länder, preferably selected from administrative bureaucracies. The Administrative Court examines appeals claiming illegality of administrative decrees (Bescheidbeschwerde), appeals against directives in special cases, and appeals claiming a breach of the obligation to decide cases (Säumnisbeschwerde). Complaints against ruling must be brought up within six weeks and must be submitted in writing and by an attorney - oral hearings are held only at the direct request of one of the parties (the petitioner or the responding authority) and these cases rarely occur in practice. The Austrian Constitutional Court (Verfassungsgerichtshof) consist of a President, a Vice-President, twelve members and six substitute members, who are appointed by the Federal President under nominations made by the Federal Government, the National Council and the Federal Council. Membership of the Constitutional Court is not considered a full-time occupation and the members may continue their regular work as judges, attorneys or law professors. Among the powers of the Court the most significant is the examination of the constitutionality of statutes. In the Austrian system, examination of all general norms, as to their constitutionality or legality is overseen by the Constitutional Court. It also has jurisdiction over cases such as rulings on complaints made against decisions in the last instance of administrative authorities where fundamental rights guaranteed by the Constitution have allegedly been violated, decisions in disputes of competence, electoral disputes, certain financial claims, impeachment, or review of the constitutionality of treaties. The Austrian system was developed in the Austrian Constitution of 1920 and this model was adopted by most Western European states, and even recently even in the emerging democracies in Central and Eastern European, the constitutional Courts have been established based on the Austrian experience. The development of constitutional jurisdiction is very similar in most places and can justifiably be considered as a success of the Austrian model. COMPARATIVE LAW ASPECT In Austria, the administrative Courts are not integrated with other Courts, as they are in Spain, where Courtrooms and divisions are one in the same, but they are different and separate Courts. They are even specialized, similar to what occurs in the Asylum Court. The host institution, the UVS are the closest to our administrative tribunals, but they lack jurisdiction over cases attributed to these other specialized tribunals, Nor do they deal with cases related to the liability of public administrations, which is an important part of the work in the Spanish Courts. The other important difference is that they do not have one-to-one administrative tribunals or those with a single judge, and thus, the UVS functions as a Court which reviews the legality of administrative acts and with the possibility that their decisions be appealed to the Administrative Court, or in the event where fundamental constitutional rights are involved, to the Constitutional Court. Since many of the cases studied by the UVS are on administrative criminal law, they are used to court hearings as a must in these cases, as my at my Court and unlike the Spanish High Tribunals of Justice, which are based on the autonomous communities, where the Courts function as appellate Courts or as first instance Court in other kinds of cases or in cases of larger economic quantities, and where hearings is not common practice.

5 From a practical point of view in relation to the process of the hearings, there are no important or significant differences, although in the Spanish system a somewhat greater importance is placed on the formalities during the hearing. In the Spanish system, the judge adopts a more passive stance, but also intervenes when he or she deems it necessary, and above all, the intervention of a lawyer is almost always necessary. As far as the rest of the system goes, the leading role of the chairman of the panel, the structure of the hearing, the presentation of the different positions by each of the parties involved, the development of evidence, and final conclusions can be comparable to Spanish process. THE EUROPEAN ASPECT OF EXCHANGE During the exchange program, I was unable to witness any specific cases in which the application of Community law was required but, on the other hand, I was explained the implementation of Community instruments, as well as th considerations of the decisions of the TJCE. THE BENEFITS OF THE EXCHANGE This has been an extraordinary experience for me, an experience that has allowed me to discover another system. A system which is so different and yet so similar to mine; a system which contributes to the trust in the functioning and decisions of other judges within the Community area. The professionalism of the Austrian judges, their efficiency and seriousness, about which I had no doubts, has been dutifully demonstrated. I would also emphasize the kindness with which everyone treated me, as well as their willingness to make me feel at home, devoting their time not only to explain to me in detail the Austrian legal system, but also to make my stay more enjoyable and comfortable. It is clear that the benefits of the exchange would have been greater had I had a better understanding of the language used in the Courts, in this case German, since I was not able to fully appreciate many details and technical aspects. But thanks to the efforts of my colleagues translating the essential points, many of my doubts were resolved and this allowed me to discover the most relevant points. SUGGESTIONS As a suggestion, I found the visit to the capital, Vienna, to be a bit short. Vienna is where the headquarters of the different Courts are located, and therefore, I was not able to visit all of them, like the Asylum Court (Asylgerichtshof) o the Independent Finance Board (Unabhängiger Finanzsenat). Perhaps a week in Klagenfurt and another in Vienna would have been more balanced.

6 SUMMARY I spent two weeks in Klagenfurt at the UVS (Independent Administrative Review Panels in the Länder), the administrative agencies of the Länder of Carinthia (Austria). Each of the nine Länder has one Panel. Participating in the daily work and hearings as well as having contact with Austrian judges was a fantastic experience for me. The opportunity to visit other tribunals, like the Administrative Court, the Constitutional Court and the Independent Administrative Tribunal of Vienna was another highlight of my stay. Thanks to this programme, I was able not only to get to know the Austrian legal system but also to compare the Spanish legal system to it and allowed me to understand that we have some common problems, which leads to the conclusions that we deal with similar cases in similar ways, and that there are not so many big or significant differences. The exchange programme in Klagenfurt was very satisfying to me, not only making it possible to improve my language skills but also giving me the opportunity to meet with extraordinary and warm people. Like my colleagues before me, I would highly recommend this kind of collaboration to all my colleagues as being a magnificent learning experience.

7 ANNEX GUIDELINES FOR DRAFTING THE REPORT I- Programme of the exchange Institutions you have visited, hearings, seminars/conferences you have attended, judges/prosecutors and other judicial staff you have met The aim here is not to detail each of the activities but to give an overview of the contents of the exchange. If you have received a programme from the hosting institution, please provide a copy. II- The hosting institution Brief description of the hosting institution, its role within the court organisation of the host country, how it is functioning III- The law of the host country With regard to the activities you took part in during the exchange, please develop one aspect of the host country s national law that you were particularly interested in. IV- The comparative law aspect in your exchange What main similarities and differences could you observe between your own country and your host country in terms of organisation and judicial practice, substantial law..? Please develop. V- The European aspect of your exchange Did you have the opportunity to observe the implementation or references to Community instruments, the European Convention of Human Rights, judicial cooperation instruments? Please develop. VI- The benefits of the exchange What were the benefits of your exchange? How can these benefits be useful in your judicial practice? Do you think your colleagues could benefit of the knowledge you acquired during your exchange? How? VII- Suggestions In your opinion, what aspects of the Exchange Programme could be improved? How?