Is there a process of judicial review for challenging government authority action and decisions?

Bribery & Corruption (2nd edition)

China Small Flag China

Similar alternative options regarding administrative enforcement include applying for administrative reconsideration and filing administrative litigations against the administrative act conducted by the enforcement agency, such as the penalties issued by the Administration for Market Regulation (“AMR”) on commercial bribery. The applicant may choose to apply to the people's government at the same level, or to the competent department at a higher level, for administrative reconsideration. If the applicant refuses to accept the decision made after administrative reconsideration, an administrative lawsuit could be filed accordingly. Litigation might also be directly initiated, without the application for administrative reconsideration.

For criminal judgements, appealing to the higher court for judgements that have not yet taken effect can be made. As for the effective judgements, the individuals or entities may file petitions to the court or the People’s Procuratorate (“Procuratorate”). The court or the Procuratorate will then review the petitions and decide whether a retrial or a counterappeal could be initiated.

France Small Flag France

Under French law, the process which comes closest to the Anglo-Saxon “judicial review” is referred to as “abuse of power recourse” (recours en excès de pouvoir), and is to be brought before administrative courts. It does allow for judicial review of administrative action and decision. However, this administrative mechanism is not particularly relevant in relation to bribery, given that decisions and actions in that respect are mostly taken by police and judicial authorities, and can be challenged, most of the time by way of an appeal, before judicial courts.

Germany Small Flag Germany

There are no specific challenges or judicial remedies related to corruption or bribery.

Greece Small Flag Greece

Depending on the type of procedure (criminal or administrative) and the phase of the investigation, inquiry etc. there are provisions with the Greek Code of Criminal Procedure as well as the Administrative Code of Procedure for judicial review of the authorities’ decisions. As regards the criminal investigation of bribery acts, the whole investigation is reviewed at its conclusion by a Judicial Council (on points of law and procedural safe-guards). Challenging decision and actions as they happen, however, may not be feasible, due to the fact that the Anti-Corruption Prosecutor (as well as the Special Investigators for corruption acts) are given extensive powers to seize, confiscate, gain access to privileged information etc. It is provided that all these actions may be challenged with the competent Judicial Council but review is done after these actions/decisions have taken place.

Ireland Small Flag Ireland

Yes, decisions and actions of government authorities can be challenged by way of judicial proceedings in the Irish High Court. In such proceedings, the High Court will assess inter alia whether the authority has acted outside its remit, whether fair procedures have been adhered to by the relevant authority and whether the decision maker has complied with all legal requirements governing the decision and its making.

Italy Small Flag Italy

According to Italian law there are more possible processes (also judicial) of review for challenging Government Authorities’ actions and decisions.

Belgium Small Flag Belgium

The legal provisions regarding the investigation and prosecution of bribery or corruption do not foresee decisions or actions by a government authority.

Japan Small Flag Japan

Even though public prosecutors have enormous discretionary power to decide whether to prosecute a bribery case, the Prosecution Review Board, which is a judicial review panel for non-prosecution cases, can review the decision and recommend the prosecutor to prosecute the case.

After prosecution, any guilty judgment rendered by a court is appealable by the defendant. Judgments rendered by the district courts are appealable to a high court. An appeal to a high court (koso) is allowed on the grounds of non-compliance with procedural law, errors in fact-finding, errors in application of law, or inappropriate sentencing. Judgments rendered by the high court are appealable to the Supreme Court, which is the highest and final court. Even though an appeal to the Supreme Court (joukoku) is allowed only on the grounds of a violation of the Constitution or a violation of judicial precedents, the Supreme Court has discretionary power to strike down judgments rendered by a high court on the grounds of legal errors, errors in fact-finding or inappropriate sentencing.

Kenya Small Flag Kenya

Article 47 of the Constitution of Kenya entitles every person to the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. In order to give effect to this Article, Parliament passed the Fair Administrative Action Act, 2015 (FAA Act). The FAA Act defines administrative action” to include “powers, functions and duties exercised by authorities or quasi-judicial tribunals” or “any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates’. Any person who is aggrieved by an administrative decision may apply for review of the decision to a court or a tribunal in exercise of its jurisdiction conferred in that regard under any written law. Section 9 of the FAA Act provides for the procedure for judicial review and section 8 is clear that an application for the review of an administrative action or an appeal under the FAA Act shall be determined within ninety days of filing the application.

United States Small Flag United States

Defendants may challenge criminal and civil charges through litigation in federal courts, seeking resolution through trial and appeals, if necessary. At the trial level in both criminal and civil enforcement actions, defendants may move to dismiss the charges during the initial stage of litigation, on a variety of potential grounds, including, for example, that the government failed to properly allege that the defendant committed all elements of the violation. Should that motion fail, the charges against the defendant will be resolved through a trial or by guilty plea. If a defendant is convicted at trial, the defendant may file post-trial motions for a new trial and/or to set aside the verdict. If the judge rules in favour of the government, the defendant may file an appeal to the US Court of Appeals, which hears all appeals that are timely and properly filed. If that appeal fails, the defendant may petition the US Supreme Court to hear the case. The US Supreme Court typically agrees to hear only a limited number of cases that present novel questions of law or involve a conflict that has developed between different US Courts of Appeal on a legal question.

Mexico Small Flag Mexico

Yes, from an administrative perspective, Articles 210 and 211 of the LGRA provide that public officials who are held liable for the commission of non-serious administrative offence, may file an appeal for revocation with the authority that issued the resolution.

The judgement rendered in the appeal for revocation may be challenged by means of action for nullity before the Federal Court of Justice for Tax and Administrative Matters.

Finally, the judgement rendered in the nullity trial may be appealed by an amparo lawsuit (constitutional relief). The amparo action, regulated by Articles 103 and 107 of the CPEUM, as well as by the Amparo Law, is the constitutional method of control for acts committed in the exercise of governmental power, mainly aiming at protecting individuals’ human and fundamental rights. The amparo action is the main defense mechanism available to the individuals for challenging governmental acts.

Brazil Small Flag Brazil

Yes, there is. Every single administrative action or decision might be challenged by Brazilian courts, in situations in which the enforcers have acted illegally (i.e. unauthorized wiretapping), they have not granted the other party the right to properly defend itself, among others. Courts, however, tend to respect the administrative decisions granted by government authorities and its merits, overruling them only in situations in which the illegality is crystal clear.

New Zealand Small Flag New Zealand

Yes, in New Zealand any decision of a public nature can be subject to judicial review, including government authority action or decisions where there are issues of legality.

Denmark Small Flag Denmark

Investigative action, etc. by the police is subject to supervision from the State Prosecutor that reviews any complaints in that regard. Investigative actions and/or decisions may also be challenged before the courts.

Romania Small Flag Romania

In the Romanian procedural law system, any interested person can file a complaint against the acts of the prosecutor which have caused their harm, such a complaint being addressed to the hierarchically superior prosecutor.

In addition, where the acts or decisions of investigative bodies are such as to prejudice fundamental rights, such as the right to freedom or the right to property, the legislator's intention was to provide increased protection for the persons concerned by these measures, by establishing a legal framework to allow for judicial review of interference in the scope of fundamental rights (i.e. on preventive measures, precautionary measures, etc.).

Singapore Small Flag Singapore

Yes. Three requirements must be satisfied before an applicant may be granted leave to commence judicial review proceedings:

  • the subject matter of the complaint has to be susceptible to judicial review
  • the applicant has to have sufficient interest in the matter; and
  • the materials before the court have to disclose an arguable or prima facie case of reasonable suspicion in favour of granting the remedies sought by the applicant

After preliminary requirements are met, the court may also decline jurisdiction if the matter is not justiciable. For example, where the decision involves matters of government policy and requires the intricate balancing of various competing policy considerations that judges are ill-equipped to adjudicate, or where a judicial pronouncement could embarrass some other branch of government or tie its hands in the conduct of affairs traditionally regarded as falling within its purview.

The scope of judicial review may involve, amongst others, reviewing (i) whether there was evidence to establish a “precedent fact” which was relied on in a government authority action or decision or (ii) whether the government authority action or decision was illegal, irrational or procedurally improper.

Switzerland Small Flag Switzerland

Procedural orders and measures of the police, the public prosecutor and the courts of first instance, as well as decisions on compulsory measures, can be appealed, in principle, to a cantonal court, or in certain cases of federal jurisdiction to the board of appeal of the Federal Criminal Court.

Any partial or final judgment of a cantonal court of first instance may be appealed to a cantonal court of appeals. The cantonal appellate court can fully review the appealed order or judgment, including legal errors, denial and delay of justice, incorrect or incomplete determination of the facts, and inappropriate exercise of discretion. An appeal against a conviction for an infraction can only be reviewed for legal errors or a manifestly incorrect determination of the facts, and no new facts may be pleaded.

Whoever participated in the appeal proceedings on a cantonal level or in a criminal proceeding before the Federal Criminal Court may appeal the judgment to the Federal Supreme Court, if a legally relevant interest exists. Such interest is presumed for the accused, the public prosecutor and, under certain circumstances, the injured party. The Federal Supreme Court reviews appeals only for legal errors and manifestly incorrect findings of fact.

All appellate courts either remedy the injustice themselves by deciding on the merits in lieu of the lower court, or refer the matter back to the lower court for a new decision, together with instructions on how to decide certain issues. In practice, the Federal Supreme Court frequently refers the case back to the cantonal courts to decide on the merits.

United Kingdom Small Flag United Kingdom

The decisions of UK government authorities, including the SFO, are subject to judicial review of the courts in certain, relatively limited, circumstances. Applicants have a narrow time frame to request review and must identify where a decision is irrational, improper or illegal.

The criteria to show irrationality are high, and rarely met in practice. Most successful judicial reviews rely upon showing that an authority has not followed its own procedures (an improper decision) or that human rights legislation has been infringed (an illegal decision).

Recent JR challenges to the SFO have focused on issues of disclosure and privilege.

Canada Small Flag Canada

The decision to prosecute an individual or company under the CFPOA or the Criminal Code remains solely in the hands of the Crown, as discussed above. This discretionary power is termed ‘prosecutorial discretion’ and it covers all decision regarding the nature and extent of the prosecution’s participation in a matter.

A basic principle of the legal system is that prosecutorial discretion must not be subjected to routine second guessing by the courts (judicial non-interference); however, prosecutorial discretion is reviewable very limited circumstances (largely for abuse of process (R v. Anderson, 2014 SCC 41)).

Convictions under the CFPOA or the Criminal Code are subject to judicial appellate processes.

Portugal Small Flag Portugal

Yes, the PCCP sets out the legal framework for appeals against any unfavorable relevant decision.

However due to successive legislative reforms, the right to appeal has been subject to more and more restrictions. The second degree of appeal has been challenged frequently.

Argentina Small Flag Argentina

Yes, there is judicial review in Argentina by which pieces of legislation and Government’s regulation and acts can be declared unconstitutional, mirroring the US’s system.

Angola Small Flag Angola

No.

Updated: July 8, 2019