Is there a process of judicial review for challenging government authority action and decisions?
Bribery & Corruption
There is a process of judicial review for challenging government authority action and decisions. At the federal level, the processes arise under:
- s 75(v) of the Commonwealth Constitution;
- the Judiciary Act 1903 (Cth); and
- the Administrative Decisions (Judicial Review) Act 1977 (Cth).
However, in general, judicial review is only available in respect of administrative decisions, which arise when a statute confers a degree of discretion to an authority making a decision.
The relevant provisions of the Criminal Code and state and territory-based legislation which establish the criminal offences relating to bribery and corruption do not confer a government authority with any degree of discretion or decision-making, and administrative decisions cannot arise from them.
In Australia, the statutory position (confirmed by case law) is that CDPP's (or equivalent state prosecutors') decision to prosecute or not to prosecute an individual or corporation is not subject to judicial review.
Further, if charges are brought against an individual or corporation, the interpretation of the provisions and whether an individual or corporation has contravened them, would be determined using common law judicial processes.
Courts adjudicate on all offences, including corruption. Apart from this, there is a process of judicial review in the course of preparatory proceedings conducted by the public prosecutor. In particular, the courts take decisions relating to temporary detention, surveillance and recording of the content of telephone conversations or issuing safe conduct to the accused. On the other hand, the courts control and supervise the public prosecutors. This includes the judicial review of decisions concerning (among other things) a search, seizure of objects, decisions on precautionary measures or establishing security on assets.
There is a process of judicial review of decisions in Ireland by which the courts examine the decisions of public bodies to ensure that they have acted lawfully and fairly. This is not concerned with the decision itself; rather, it is concerned with the decision making process. The court conducts a review of the process by which a public body has reached a decision to assess whether it was validly made. For a decision of a public body to be judicially reviewable, the applicant must have sufficient interest in the case and there must be a public law dimension.
According to the provisions of the Brazilian Federal Constitution, no law can exclude the jurisdiction of the Judiciary Branch for the analysis if any violation of threat of violation of a right. To that extent, and following Brazilian scholars, in case a legal entity is held liable under an administrative proceeding, in accordance with the Brazilian Anticorruption Law, the legal entity may challenge such decision in Brazilian courts (State or Federal, depending on the public agency responsible for the administrative proceeding to be challenged).
Since the Brazilian Anticorruption Law is still new (it was enacted in August 2013 and came into force in January 2014, being regulated only in March 2015), all those discussions are still in their early stages, and there is still no precedent that could guide in the application of the law or establishing minimum standards for the challenge of any such decision.
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.
Yes, there is. A Government Authority’s decision can be challenged in the competent Courts however prior to doing so, a party is required to seek permission from the relevant Emirate’s Rulers Court. Once the permission is given, only then can the matter proceed to the competent courts.
Article 4 of the Singapore Constitution provides for constitutional supremacy and thus provides the legal basis of Singapore courts' powers to conduct judicial review of government actions or decisions.
In order for an application for judicial review to be made, an applicant must meet the preliminary requirements provided under the Rules of Court. Amongst these requirements, it is necessary for there to be a prima facie case; a case that is real and not theoretical; the applicant must have locus standi to bring the case and "the sufficient interest" test must be met. However, even if all preliminary requirements are met, the courts, can and have, nevertheless declined jurisdiction in circumstances where they consider the issue to be one that is not appropriate for them to deal with or if it falls outside of their expertise.
Whilst a number of judicial review applications have been granted over the years, the courts have generally been reluctant to interfere in political processes and sought to avoid an adversarial relationship with the Executive. As such, the bar for succeeding on a judicial review application has, in practice, historically been a reasonably high one.
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 Industry and Commerce (“AIC”) 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.
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.
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.
Government authority and actions are subject to judicial review in India. In case of bribery and corruption (under PCA) the jurisdictional Special Court has the power to entertain appeals against government orders/decisions. Orders passed by the Special Courts can further be assailed before the jurisdictional High Court.
The Angolan Constitution provides for the principle of division of powers and check and balances, meaning that, indeed, Angolan courts may, within certain circumstances, review government authority action and decisions. In particular, in case Government approves a legal act which does not comply with constitutional principles this act may be reviewed by the Angolan Constitutional Court – this is the court with powers to review and, if that is the case, revoke legal acts which are not in accordance with the Angolan Constitution (similar to the Supreme Court in the USA). 1/10 of the members of the Parliament, the State General Attorney, the President and the Angolan Bar Association may file a claim for these purposes (art. 230 of the Angolan Constitution).
Yes, the Criminal Procedure Code establishes the means for judicial review of all criminal proceedings.
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.
There are no specific challenges or judicial remedies related to corruption or bribery.
According to Italian law there are more possible processes (also judicial) of review for challenging Government Authorities’ actions and decisions.
Unless stated otherwise, all government authority actions and decisions may be challenged or reviewed, under Articles 389 and following of the Criminal Procedure Code.
HRA: Yes, all parties to the criminal process may challenge decisions that are unfavourable to them by way of appeal to a higher court.
Administrative actions and decisions are subject to a process of judicial review.
The French results of the fight against bribery have been regularly evaluated by the SCPC which forwarded an annual report to the Minister of Justice. The French antibribery agency will now be entrusted with this task. The NGO Transparency International also publishes a very useful annual report with a ranking as well as the OECD which produces regular country-by-country reports.
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.
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.