Το δικαίωμα της προηγούμενης ακρόασης του διοικουμένου στη νομολογία του Συμβουλίου της Επικρατείας

Abstract

The scope of this essay is to present the right of previous hearing, as it has been formed through the Council of State΄s case-law. An attempt is made to capture the dynamic case – law approach of one of the most fundamental means that the citizen has in his relations with the administration and to demonstrate the importance of defending himself within the framework of an effective rule of law. The right of previous hearing is enshrined in article 20 par. 2 of the Constitution while it is also regulated by article 6 of the Code of Administrative Procedure. It consists in the possibility that the administrator has to submit his objections and formulate his claims before the issuance of of an administrative act that is harmful to his interests or of an unfavorable administrative measure. The first part of this paper presents the institutional shielding of the right to be heard and its gradual delimitation, as it results from the decisions of the Council of State. Next, the individual aspects of the right are presented, which at the same time constitute claims, of the administrator for the effective exercise of his right. Then, both the conditions that have been set by law for the application of the right and the actions of the administration in case of violation are described. In the second part of the paper, the tendency of shrinking the protective force of the right to be heard by the Council of State under the claim of achieving even greater administrative effectiveness, is studied. Applying, mainly, from the primary material provided by the large case law of the Council , and on which the present work was based, the main reasons for the restriction of the right are considered, especially, the nature of the administrative act or measure, emergency assistance, due to risk or huge public interest, and, finally, due to the existence of procedural barriers. The essay concludes with a brief assessment of the application of the right of previous hearing by the Council of State, formulating some thoughts on its case law in the context of modern administrative reality.