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oai:doaj.org/article:98744e2b26754be9bc649d85fcc40677

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Prior administrative application and judicialisation of public health: an analysis of the requirement and its exceptions

Abstract

O study analysed to what extent the prior administrative request should condition access to justice in public health claims. Initially, the deductive method was adopted to investigate, on the basis of the conception of principles in Robert Alexy’s theory of fundamental rights, the possibility of requiring such a procedural requirement in the context of a conflict between the principles of access to justice and those of the due legal process introduced for the protection of the fundamental right to health. Next, by means of the inductive method, the grounds of the judgment of the Federal Court of Justice, which made the assessment of provisional actions conditional on the prior administrative request, were examined in order to identify whether, in view of the similarities and differences, those reasons would also apply, and to what extent, to public health claims. After that, contributions were made to the adoption of the prior administrative application as a requirement for the processing of legal proceedings concerning public health for the qualitative improvement of public health policy, as well as for the provision and adequate settlement of disputes in that field. Finally, the limits and exceptions to be observed with regard to the requirement of prior administrative application in public health cases were investigated, on the basis of the basis of the right to health and the parameters which are consolidated in the case-law of the higher courts, the statements of the Health Law Days and specialised literature.

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