Application of the principle of proportionality in the procedure of the Court of Administrative Justice

Document Type : Original Article

Authors

1 PhD student,Department of Law,Semnan, Islamic Azad University, Semnan،IRAN.

2 Assistant professor of Law, Shahid Beheshti University, Tehran, IRAN.

3 Assistant professor of Law.,Department of Law,Semnan, Islamic Azad University, Semnan،IRAN.

Abstract

An act or a decision that results in restriction of an individual right can be considered proportionate if it pursues a legitimate aim and is logically related to it and uses a coherent tool that entails the lowest cost. Therefore, the proportionality test is based on the cost-benefit analysis. The proportionality principle is a structure and methodological tool as well as an intelligent procedure for reviewing the actions of public authorities. One of the Administrative Court of Justice objectives is to ensure the officials and institutions actions proportionality by directing them toward the legislative goals and preventing organizations, departments and their staffs from violating the law or using disproportionate measures. The principle of proportionality can help to achieve this goal. However, the examination of the aforesaid institution's approach does not reveal any systematic and structured implementation of the above-mentioned principle. In some cases, an implicit respect for the principle of proportionality concept can be observed, although the opinion in accordance with the above principle is not cited.

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Main Subjects

References

  1.  

    References

    Books

    1. Adler John. general principles of constitutional and Administrative law. Palgrave Macmillan. 2002.
    2. Alexy Robert. A theory of constitutional Rights. oxford university press. 2002.
    3. Ashtarian, Keyumars, Guide To Government Planning And Public Policy, Tehran: Mizan, 2022. (In Persian)
    4. Barak Aharon. Proportionality constitutional rights and their Limitations. Cambridge press. 2012.
    5. Gorji, Ali Akbar, Basics Of public Law, Tehran: Jangal, 2009. (In Persian)  
    6. Gorji, Ali Akbar, In Effort Of Public Law, Tehran: Jangal, 2014. (In Persian)
    7. Hadavand, Mahdi, Comparative Administrative Law, Vol.1, Tehran: Samt, 2011. (In Persian)
    8. Hadavand, Mahdi, Comparative Administrative Law, Vol.2, Tehran: Samt, 2012. (In Persian)
    9. Jalali, Mohammad & Misa Kamyab, Administrative police, Tehran: majd, 2021. (In Persian)
    10. Klatt Mattias & Meister Moritz. the constitutional structure of proportionality. oxford univercity press. 2012.
    11. Markaz Malmiri، Ahmad, Aryan, Petaft, The Concept And Scope Of The General Principles Of Administrative Publication Of The Judiciary, 2018. (In Persian)
    12. Mashahdi, Ali, Discretionary Power, Tehran: Publication of the Presidential Legal Office, 2012. (In Persian)
    13. Messey I.P. Administrative Law. Eastern Book Company. 2012.
    14. Moradi Berelian, Mahdi, Principle of Proportionality in the Legal System Of The European Union, Tehran: Khorsandi, 2013. (In Persian)  
    15. Musazadeh, Ebrahim, Appropriate Points Of Administrative Law, Tehran: Dadgostar, 2023. (In Persian)
    16. Petersen Niels. Proportionality and Judicial activism. Cambridge University Press. 2017.
    17. Speeches in The Court Of Administrative Justice, (A Collection Of Research Reports And Scientific Meetings Until The End Of 2014), Tehran: Publication Of The Judiciary, 2015. (In Persian)

    Articles

    1. Alexy Robert. "Constitutional Rights, Balancing, and Rationality". Ratio Juris (An international Journal of Jurisprudence and philosophy of low). Vol. 16. 2003.
    2. Jackson Viki C. "the constitutional in the age proportionality". Yale law journal. vol 124. 2015.
    3. Jalali Mohammad & Soodbar Sogol. "A Critical Analysis of application of proportionality Test and Margin of appreciation doctrine by European court of human rights". Journal of Human Rights. Vol. 18. 2022.
    4. Jalali, Mohammad, Hamideh Saeidi Roshan, "The Role Of The Administrative Court Of Justice In Protecting The Constitution", Legal Journal Of Justice, Vol. 84, No. 94, 2016. (In Persian)
    5. Moller Kai. "Dworkin's theory of Rights in the age of proportionality". the law & Ethics of humans Rights Journal. Vol 12. 2018.
    6. Moller kai. "Proportionality Challenging the Critic". International Journal of Constitutional Law. Vol. 10. 2012.
    7. Stone Sweet Alec, Jud Mathews. "Proportionality Balancing and Global Constitutionalism". Columbia Journal of Transnational Law. Vol 47. 2008.

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History

  • Receive Date: 03 March 2024
  • Revise Date: 01 September 2024
  • Accept Date: 07 May 2024

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