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

Abstract

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.