Hallintoprosessuaalista väliaikaista oikeusturvaa koskevan sääntelyn irtaantuminen siviiliprosessuaalisista turvaamistoimista ja tarve ennakolliselle oikeusturvalle hallintolainkäyttöasioissa
Avainsanat:
hallintoprosessi, prosessioikeus, väliaikainen oikeusturva, ennakollinen oikeusturvaAbstrakti
Disconnection of provisional protection in administrative adjudication from precautionary measures in civil procedure and the need for effective provisional protection in administrative matters
The Finnish Administrative Judicial Procedure Act (AJPA), which entered into force on 1 January 2020, lays down provisions on the guarantees of due process and fairness in judicial proceedings concerning administrative matters and other legal relationships governed by public law. AJPA applies to judicial proceedings in the general administrative courts, that is, the Supreme Administrative Court and the regional administrative courts, and also to judicial proceedings concerning administrative matters in the Insurance Court, the Market Court, and the Labour Court.
According to section 123(1) AJPA, while an appeal is pending, an administrative court may prohibit the enforcement of the appealed decision, order the suspension of its enforcement, or issue other orders concerning the enforcement of the decision. According to section 123(2) AJPA, an administrative court may also issue an interim order safeguarding the exercise of the rights or interests of a party in a pending administrative judicial matter, other than appeal.
This means that an administrative court is not competent to provide provisional protection (interim orders) before the main issue becomes pending. Before the entry into force of AJPA, but not any longer, the general courts had this kind of preliminary competence under chapter 7 (on precautionary measures) of the Code of Judicial Procedure. The article examines firstly the background of this legislative change, and secondly the need for effective provisional protection in administrative matters.
