Ricardo Perlingeiro

47 Geschichte der Verwaltungsgerichtsbarkeit in Lateinamerika

Der Beitrag untersucht die Geschichte der Verwaltungsgerichtsbarkeit in den neunzehn lateinamerikanischen Landern iberischen Ursprungs (Argentinien, Bolivien, Brasilien, Chile, Kolumbien, Costa Rica, Kuba, Ecuador, El Salvador, Guatemala, Honduras, Mexiko, Nicaragua, Panama, Paraguay, Peru, die Dominikanische Republik, Uruguay und Venezuela) ab dem 19. Jahrhundert. Dabei werden insbesondere der Einfluss des US-amerikanischen Systems der Einheitsgerichtsbarkeit sowie der procedural due process of law analysiert, der den Verwaltungsentscheidungen vorausgeht und ein fruchtbares Feld fur die primary jurisdiction bietet. In krassem Gegensatz dazu steht die kontinentaleuropaische Verwaltungsrechtskultur, die in Lateinamerika fest verwurzelt ist.

Principles of the Right of Access to Official Information in Latin America

This article takes as its starting point the 10 principles of right to access information declared in 2008 by the Inter-American Juridical Committee (CJI) of the Organisation of American States (OAS), and the OAS’s Inter-American Model Law on Access to Public Information, published in 2010, which systematise the case law of the Inter-American Court of Human Rights. It is a comparative study, which – in light of the theory of fundamental rights – contrasts the level of influence of the Inter-American System of Human Rights in terms of the legislation and judicial precedents of the 18 Latin-American countries that are of Iberian origin and subject to the American Convention on Human Rights (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, El Salvador, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Uruguay and Venezuela). Consequently, it points out the positive and negative aspects of the national laws governing information access in Latin America.

Essentials of the Right of Access to Public Information: An Introduction

The first freedom of information law was enacted in Sweden back in 1766 as the “Freedom of the Press and the Right of Access to Public Records Act”. It sets an example even today. However, the “triumph” of the freedom of information did not take place until much later. Many western legal systems arose from the American Freedom of Information Act, which was signed into law by President L.B. Johnson in 1966. This Act obliges all administrative authorities to provide information to citizens and imposes any necessary limitations. In an exemplary manner, it standardizes the objective of administrative control to protect citizens from government interference with their fundamental rights. Over 100 countries around the world have meanwhile implemented some form of freedom of information legislation. The importance of the right of access to information as an aspect of transparency and a condition for the rule of law and democracy is now also becoming apparent in international treaties at a regional level. This article provides an overview on the crucial elements and the guiding legal principles of transparency legislation, also by tracing back the lines of development of national and international case-law.

Due Process Prior to Administrative Decisions and Effective Judicial Protection in Brazil: A New Perspective?

Abstract In view of the increasing number of repetitive judicial actions in public law issues, this text proposes reconsidering the guarantees of administrative due process of law - enshrined in the Brazilian Constitution of 1988 -, among them the effective independence of the administrative authorities, based on a comparative perspective between the Anglo-Saxon and Continental-European models concerning judicial protection of individual rights. The author is visibly concerned with searching for a better understanding of topics that are considered to be established dogmas in Brazilian law, such as the contradiction between the self-enforceability of administrative decisions and the need for the public authorities to initiate judicial actions against individuals; the distinction between the administrative procedure and the (judicial and non-judicial) administrative proceeding and their implications for individuals in court proceedings; impartiality without independence of the authorities in conducting a non-judicial administrative proceeding; scope of judicial review of the utilization of the margin of appreciation of factual/scientific matters in decisions made by public administrative authorities.

The Development of the Right of Access to Official Information in Latin America According to the Case Law of the Inter-American Court of Human Rights

A versao em portugues deste artigo pode ser encontrado em: http://ssrn.com/abstract=2821347Русская версия этого текста находится по адресу: http://ssrn.com/abstract=2888530This text is a descriptive analysis of the declaration of principles of the information access rights formulated by the Inter-American Juridical Committee of the Organization of American States, based on the case law of the Inter-American Human Rights Court, which were consolidated into the Model Inter-American Law on Access to Public Information, namely: the concept of the right to information; the scope of the right to information; proactive disclosure, administrative request; limits on information access; demonstrating fulfillment of the prerequisites for denying information access; administrative proceedings; penalties under administrative and criminal law; promoting and implementing the right to information.

Contemporary Challenges in Latin American Administrative Justice

This study consists of a critical comparative analysis of the administrative justice systems in eighteen Latin American signatory countries of the American Convention on Human Rights (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, El Salvador, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, the Dominican Republic, Uruguay and Venezuela). According to this article, the excessive litigation in Latin American courts that has seriously hampered the effectiveness of the administrative justice systems may be explained as follows: as former Iberian colonies, the aforementioned countries have a Continental European legal culture (civil law) but nevertheless have improperly integrated certain aspects of the unified judicial system (generalized courts) typical of administrative law in common-law countries. This situation, according to the author, could be rectified through strengthening the public administrative authorities with respect to their dispute-resolution and purely executive functions by endowing them with prerogatives to act independently and impartially, oriented by the principle of legality understood in the sense of supremacy of fundamental rights, in light of the doctrine of diffuse conventionality control adopted by the Inter-American Court of Human Rights.

Recognizing the Public Right to Healthcare: The Approach of Brazilian Courts

This paper considers aspects of the judicialization of health care policy in Brazil. It discusses the issue in the context of the separation of the powers of government, judicial protection of the public right to healthcare, the so-called “technical administrative discretionary prerogatives,” and finally, the need for a budget to provide for the efficacy of court decisions. To further the analysis of Brazil’s treatment of the judicialization of politics this paper also compares Brazil’s experience with the experience of other countries witnessing the same