Transcript AdmInistrative Law (part I)

ADMINISTRATIVE LAW
(PART I)
Class: 4
A SET OF GENERAL PRINCIPLES OF ADM. LAW SEEMS
TO HAVE ALREADY PREVAILED GLOBALLY:
the principle of legality,
• the right to participate in the decision-making process,
• the right to prior hearing of the interested and affected parties,
• the right to consultation,
• the right to access documents,
• the obligation to justify administrative acts and decisions,
• the principle of founding decision on scientifically sound and provable
grounds,
• the principle of proportionality,
• the principle of transparency.
•
One can find general rules (prinicples) of adm. law in Articles 6-16 of
the Polish Code of Adm. Proceedings (Chapter 2, Section I)
1. They are ’general’ in the sense that they do not cover any specific
provisions of the Code, so they apply to the whole of administrative
procedure.
2. They must be applied together with other provisions of the Code.
3. According to the rule of the Supreme Administrative Court, I SA 258/82l
ONSA 1982, N0. 1/54:
The general principles of administrative procedure are an integral part of the
provisions regulating administrative procedure and are binding for an
administrative body equally as other provisions of the same procedure.
4. General principles of administrative proceedings constitute
a set of basic rules of conduct, which have been deemed
by the legislator as fundamental and have been included in
the separate Chapter 2 of the Code.
5. The above principles are not only directions, directives or
recommendations – they are legal norms.
6. Infringement of any general principle must be treated as
any other infringement of any universally legal norm and of
any provisions of the Code of Administrative
Proceeding.
7. During the course of administrative proceedings they must
be observed ex officio by administrative bodies.
8. General provisions have a specific position among other provisions
of the Code. They are superior in the hierarchic structure of provisions
of the Code.
9. General provisions may be considered as more important due to
their vast application exceeding the scope of legal norm.
10. General provisions may serve as interpretative directive with
regard to the meaning of other procedural provisions, but also
provisions of substantive law.
11. One can find the source of these provisions in the Constitution.
12. General provisions are in accordance with principles of democratic
state under the rule of law. They are also in accordance with EU and
international standards.
13. General provisions protect legal position and legal interests of
parties to the proceedings.
GENERAL PRINCIPLES:
Formulated as absolute ones:
1. The rule of law
2. The rule of deepening the citizens’
trust in public administration bodies
3. The principle of providing factual and
legal information to parties and to
other participants of proceedings
4. The principle of parties active
participation in administrative
proceedings
Accept exceptions:
1. The rule of written proceedings
2. The rule of validity of a final decision
3. The rule of two-instances
proceedings
GENERAL PRINCIPLES:
1. legality,
2. taking into account the public interests of citizens and just interests of citizens
ex officio,
3. objective truth,
4. deepening the trust of citizens to the state authorities,
5. furnishing the parties and other participants with information,
6. active participation (hearing) of the parties in the proceedings,
7. convincing the parties (explaining the grounds for rullings),
8. prompt and simple proceedings,
9. amicable resolution of matter,
10. written proceedings,
11. two-instances proceedings,
12. durability of final administrative decisions,
13. court review of legality of administrative decision.
1. The principle of legality (lawfulness), set out in Articles 6 and 7
of the Code.
1. Pursuant to this principle public authorities conducting
administrative proceedings shall act on the basis of provisions of
law and shall protect legality.
2. It is a constitutional principle:
- it is set out in Article 7 of the Constitution of 1997 which states
that: The organs of public authority shall function on the basis of, and
within the limits of, the law.
3. The prinicple of legality is a general rule for the whole legal system.
4. Legality is the most important principle in every democratic state under
the rule of law.
The principle of legality was considered many times by
administrative courts.
For example in its judgement of 27 October 1987 (IV SA 292/87) the
Supreme Administrative Court stated that:
“The principle of legality requires that any act taken by a public
administration body interfering in the privacy of an individual has to be
based on a specific provision of law.”
In the judgement of 10 June 1983 (I SA 217/83) the Supreme
Administrative Court stated that:
”In case a decision is adopted with respect to a matter which according
to the law, should be settled otherwise that by means of decision, such a
decision has been adopted without a legal basis.”
1.
The Supreme Administrative Court in one of its
judgements stressed that a situation in which a public
administration body has aplied provisions that have not
been published yet and citizens have not had the chance to
learn them is a violation of the prinicple of legality.
2.
According to the Supreme Administrative Court, an
individual shouldn’t bear negative results of a defective
functioning of State bodies with respect to the stipulation
and publication of law.
1. When it comes to the rule of legality it has to be born in mind that due to
this rule public organs are obliged to act under and pursuant to universally
binding provisions of law (only generally binding acts can be legal basis for
administrative decision).
2. The category of universally binding acts included:
- the Constitution,
- statues (acts),
- ratified treaties,
- acts of secondary legislation issued pursant to an within the scope of an
explicit statutory authorisation (ordinances),
- enacments of local law.
Guidelines or instructions adopted by ministers for their officials cannot
be a basis for administrative decisions settling rights or obligation of
individuals.
The principle of legality:
1.
2.
3.
4.
5.
An administrative body conducting administrative proceedings is a
guardian of legality.
An administrative body conducting administrative proceedings is
obliged to take only exclusively lawful actions.
Administrative body is obliged to safeguard the observance of law and
order of all participants in the proceedings.
Administrative body is liable for the breach of law that has occurred in
the course of proceedings.
Administrative body will bear the consequences of a breach of law
irrespective of who is the source of breaching.
2. The principle of taking into account the public interest
and just interests of citizens ex officio
1. is set out in art. 7 of the Code,
2. pursuant to art. 7 of the Code the authority conducting
the proceedings has a duty to identify the two interests
and in case of conflict in a particular case, the authority
shall aim to reconcile (balance) the interests.
This is a principle of fundamental significance for
adjudication of matters dealing with administrative
discretion.
1. In case of discretionary decisions, the role of administrative bodies isn’t
limited to an examination whether the statutory premises have been fulfilled.
In such case law provides for the posibility of administrative bodies to choose
one of the options stipulated by it (such provisions usually have the following
wording: „an administrative authority may…”). In adopting such a decision an
administrative body must observe the principle of taking into account the
public interes and the legitimate interest of individuals (however, the public
interest is also equally important).
2. According to the judgement of 11 June 1981 of the Supreme Administrative
Court:
„An administrative body acting pursuant to provisions of substantive law providing
for a disretionary character of a decision is obliged to settle the matter in a way that
is in accordance with the legitimate interest of an individual unless it is contrary to
the public interest and unless it exceeds the limits of disretion”.
3. The principle of objective (substantive) truth:
1. is set out in Article 7 of the Code,
2. pursuant to this principle the authority conducting the
proceedings shall take all actions necessary to establish the
facts of the matter in compliance with the actual course of
events.
In the opinion of the Supreme Administrative Court which was
given in its judgement of 2 December 1981 (SA/Gd 159/81):
“Administrative body’s failure to shed light on relevant circumstances
of a matter makes a free adjudication out of a decision”.
The principle of objective (substantive) truth:
1. administrative body is obliged to collect and examine the
evidence in its entirety and in a manner allowing to
establish facts of a case as they are in reality,
2. the essence of the principle of substantive truth is the
imposition on an administrative body of the obligation to
conduct comprehensive explanatory proceedings,
3. failure to clarify or an insufficient clarification of the facts
of a case always produce a defective procedure.
4. The principle of substantive truth will be infringed in case
when clarification proceedings are limited in the way that in
the hearing of evidence only some means of evidence are
discharged, especially those that are easier or less expensive
to be discharged.
In the judgement of 13 December 1988, II SA 370/88, the
Supreme Administrative Court stated that in case when there is
direct evidence and no obstacles to carry out an appropriate
hearing of evidence, the replacement of direct evidence by
circumstantial evidence constitutes an infringement of
procedural provisions.
4. The principle
of deepening the trust of citizens
to the state authorities:
1. is set out in Article 8,
2. has the broadest scope of all the principles,
3. embraces the entire system.
Following rules of proceedings result from above mentioned
principle:
1. the accurate clarification of all circumstances surrounding the matter,
2. taking into account all applicable interests and addressing all
statements and applications filed by the parties,
3. kind attitude of clerks (it corresponds with the provisions of the
European Code of Good Administrative Behaviour),
4. fast disposition of the matter (within time limits) – 3 time limits!!!,
5. elimination of all adverse consequences of the authority’s misconduct
for a party who acted in a good faith,
6. equality in law, which in particular means that those entities, whose
legal and factual status before the acting authorities is similar, may
expect similar or identical decisions.
Two more directives derive from the principle of
reinforcing citizens’ confidence in State bodies. These
directives are obligations for administrative authorities’
officials:
1. an official should be competent and kind to a petitioner,
2. if facts of a case and legal enviroment are the same (or
similar), similar decisions should be adopted.
Citizens want to be sure that their matters will be
handled in the same way by competent and responsible
bodies.
5. The principle of furnishing the parties and other
participants with information, set out in Article 9.
Article 9 of the Code: ”Public authorities are obliged to
provide due and comprehensive information to the parties
on factual and legal circumstances that are subject of
administrative proceedings and may have an impact on the
specification of these parties’ rights and duties”.
Pursuant to this principle:
1. authorities shall duly and fully inform on factual and legal aspects
which may influence the decision,
2. the authority is expected to safeguard the parties and other
participants to the proceedings so that neither of them suffers
any damage due to their ignorance of law (in particular
by furnishing explanations and instructions),
3. this principle revokes another fundamental principle established
in the legal system, known as “ignorantia iuris nocet” (ignorance
of the law is harmful).
1. An administrative body is obliged to provide information about
factual and legal circumstances that may have an impact on a
decision in a particular matter.
For example: an administrative body should inform about:
- necessity to fill in an appropriate form,
- obligation to collect one’s identification card personally,
- necessity to establish a proxy in writing or to meet certain time
limits,
- manner or issuing specific documents.
2. An administrative body isn’t obliged to provide information on
the circumstances that aren’t related to the matter or don’t have
impact on a decision in the matter.
In its rulling of 7 December 1984, III SA 729/84, the
Supreme Administrative Court held that the
administrative’s body obligation to inform the parties
about factual and legal circumstances that may have an
impact on the specification on these parties’ rights and
duties is imposed especially in matters where it may
be concluded from the circumstances that a given
party is dealing for the first time with such factual and
legal problems.
According to the judgement of the Supreme
Administrative Court of 27 March 1985 (III SA
153/85):
„An administrative body’s failure to properly
instruct the parties should be treated as
infringement of law which has had an impact on
issuing a decision”.
An administrative body must assure that neither
parties nor other participants of proceedings will
incur damage due to ignorance of law.
2. An administrative authority protect against a
damage not only parties of the proceedings, but
also witnesses or experts.
3. For instance, an administrative body should
instruct the parties and other participants of
proceedings about the consequences of their
failure to appear on summons.
1.
6. The principle of active participation (hearing) of the parties in the
proceedings, is set out in Article 10.
Pursuant to this principle, authorities shall ensure that parties may
actively participate in every stage of the proceedings, and, prior
to issuing a decision, authorities shall give parties an opportunity
to present their position as to the collected materials and submitted
demands.
The implementation of this principle secures the party’s right to:
1. access the case files,
2. submit any evidentiary motions,
3. participate in the evidentiary proceedings,
4. give explanations, make demands and objections.
1. According to the principle of parties’ active participation in
administrative proceedings - before a decision is adopted party
has the right to analyse collected evidence and to deliver his/her
opinion on this evidence.
2. In the judgement on 7 March 1989, SA/Kr 11/89 (not published),
the Supreme Administrative Court judged:
„If an institution of appeal carries out complementary
proceedings in a matter, it is obliged to make it possible for the
parties to deliver an opinion on additional evidence and dossiers
before the decision is rendered”.
3. One more obligation of administrative bodies which derives
from above mentionded rule is that an administrative body is
obliged to inform a party’s representative about all of the
previously mentionded action (notices, summons and decisions
should be delivered also a representative).
4. Ommiting a party’s representative by an administrative body is
equal to ommiting the party in administrative proceedings and
justifies a revival of the proceedings (rulling of 10 February 1987,
Sa/Wr 875/86, ONSA, 1987, No 1/13; OSPiKa 1989, No 4/79).
Remember that a party has a right not an obligation, to take an
active part in the proceedings.
5. The obligation to make administrative files avaiable comes from
the principle of parties’s active participation in administrative
proceedings:
• parties must have the possibility of real participation in the
proceedings,
• parties may take notes and make copies of the case files,
• parties have the right to ask an administrative body for certification
of the copier made,
• parties may request an administrative body to get certified copies
from the record. However, such a request must be justified by an
important interest of the party. This right can be limited only in case
of State confidentiality or due to a legitimate interest of the State.
7. The principle of convincing the parties (explaining the
grounds for rulings), set out in Article 11.
1. Pursuant to this principle, the authority shall explain to the parties
the grounds for deciding the matter in order to convince the party
that the ruling was just. As a result, the authority shall enable the
party to satisfy the decision without the application of any coercive
measures.
2. This principle requires that the decision be fully and diligently
substantiated with regard to both: facts and applicable law.
3. The principle of convincing, consists in imposing an obligation on
an administrative body to explain to the party that the decision
addressed to that party is grounded on rational premises and is
legitimate.
The Supreme Administrative Court has stressed two
additional aspects of this principle:
1) an administrative body should explain why given
provisions were applied, or why given provisions were
considered inapprioprate for settled facts of the case,
2) if an administrative body doesn’t take into account
the statements that the party considered relevant for
the settlement of the case, it will infringe the principle
of convincing.
8. The principle of prompt and simple proceedings, set out in
Article 12:
1. pursuant to this principle, the authority shall act in a detailed
and prompt manner, applying the simplest possible measures
to dispose of the matter. In order to implement this principle
time limits to dispose of the matter were introduced
(immediately, 1 or 2 months),
2. this principle is also fulfilled by the party’s right to file a claim
with the administrative court based on the authority’s failure
to dispose the matter within prescribed time limits (art. 37 CAP)
Three time limits for ending administrative cases:
1) immediately: an administrative body should settle
immediately/without unnecessary delay, matters that can be
considered upon the basis of evidence presented by the party, and
related proceedings can be initiated upon the basis of facts and
evidence which are known ex officio to the administrative body
concerned or those facts and evidences that can be identify from the
data the body has at its disposal.
2) one month: time limit for settling a matter is one month from the
date the proceeding was initiated whenever it is necessary to carry out
explanatory proceedings in order to identify all of the circumstances
that are relevant for the settlement of the matter.
3) two months: the settlement of a particular
complicated matter should be completed within
two months from the date of the initiaton of
proceedings as the latest.
4. separate provisions regulate time limit for the
settlement of a matter by a body of appeal.
In general administrative proceedings a body of
higher instance has one month to settle an appeal
that was brought before it.
9. The principle of amicable resolution of matters, is set
out in Article 13.
Pursuant to this principle, the matters in which parties of
opposing interests participate may be disposed of by way
of administrative settlement.
The authority should persuade the parties to settle.
An administrative settlement is admissible when
following requiremnets are met:
1.
the matter concerns at least two parties,
2.
the character of a given matter requires an agreement,
which means that parties have different interests,
3.
the agreement will contribute to the simplification or
acceleration of proceedings,
4.
the agreement won’t be in violation of any provisions of
the law.
10. The principle of written proceedings, set out in Article
14 of the Code:
1. pursuant to this principle, the authority has a duty
to dispose of the matters in administrative proceedings in
writing or in the form of an electronic document.
It is an exception to a general rule that in certain cases
matters may be disposed of verbally (if it is in the interest of
the parties and no provision of law provides otherwise)
11. The principle of two-instances proceedings, set out in
Article 15:
1. due to this principle, each decision issued in the first
instance may be appealed against to the administration
authority of higher level,
2. the lack of possibility to file an appeal is an exception and
applies only to cases expressly specified by law (e.g. decisions
issued by the supreme (central) state administration authority
are not appealable, but an application may be submitted
to the authority to reconsider the matter).
According to the principle of two-instances, the party has the right to
have his/her matter consider twice, as regards to its merit, by two
administrative bodies of different authority:
1) by a body that has issued the decision in the first instance and
2) by a body of higher instance.
In the judgement of 12 November 1992, V SA 721/92, the Supreme
Administrative Court stated, however, that it is not sufficient that two
decisions on a matter have been issued by two bodies of different
authority in order to find that the principle of two instances has been
satisfied.
It's also necessary that each of the bodies issuing a decision carry out
proceedings allowing it to reach the purpose for which the proceedings
have been initiated.
From the principle of two-instances proceedings arise
two obligations for public administrative bodies:
1) the obligation to issue final acts in the proceedings in a
written form,
2) the obligation to put in written form all of the actions
that are relevant to the settlement of a matter of the
course of the proceedings.
The principle of written form in proceedings is applied through
regulations on minutes and notes.
Exceptions from the principle of two instances:
1) the right to apply for reconsideration of the
matter;
a) the matter is considered twice;
b) the matter is consider twice but by the same
organ.
12. The principle of durability of final administrative
decisions, is set out in Article 16.
Pursuant to this principle, final decision, as a rule, may
not be challenged and is presumed compliant with law;
it may be challenged only in the procedure provided for
in the act, which means that it may be quashed,
amended or declared invalid, or proceedings regarding
its issuance may be reopened, only in exceptional
instances provided for in the Code or specific statutes.
a. A final decision, is a decision, against which any appeal cannot
be made in administrative proceedings (a final decision is assumed
to be valid. This means that until it has been repealed or declared
invalid, a decision may be executed by the entitled party).
The appeal cannot be made against the decision taken:
1) by a body of appeal,
2) in the first instance where the time limit for appeal has already
elapsed,
3) by a first-instance body to which an appeal cannot be made
pursuant to specific provisions.
The principle of durability of a final decision
doesn't mean that defective decision will
remain legal due to the fact that it is a final
decision.
2. A final decision can be modified or
repealed, and it can be declared invalid only
in cases and in a mode that are set out by
the Code or by specific Acts.
1.
13. The principle of the court review of legality of
the administrative decision, set out in Article 16.2.
Pursuant to this principle, a claim may be submitted
to the administrative court on the grounds on the
decision’s conflict with law.
The principle of the court review of legality of the
administrative decision was introduced in the
Code in 1980.
There have been two levels of administrative courts in
Poland since 2004:
1) 16 Voivodship Administrative Courts - first instance,
2) 1 Supreme Administrative Court - second instance.
Judicial review exercised by the Administrative Court is
limited to the conformity of actions taken by
administrative bodies to the law.
Thank you for your attention!
The presentation was based on:
1.
2.
3.
4.
5.
6.
7.
M. Możdżeń-Marcinkowski, Introduction to Polish administrative law. Second revised edition,
Warszawa 2012.
H. Izdebski, Public administration and administrative law, Warszawa 2005.
M. Bińkowska, A. Chechłowski, R.A. Walawender, The Code of Administrative Proceedings, Warszawa
2010.
A. Korzeniowskia-Polak, Administrative procedure, [in:] Introduction to Polish law, Anna Wyrozumska
(ed.), Łódź 2005.
Code of Administrative Proceedings (Journal of Law 2013, item 267 with further amendment –
consolidated text)
Law on 30 August 2002 on the Proceedings before Administrative Courts (Journal of Law No. 153, item
1270 with further amendment)
Law on 30 August 2002 on the system of Administrative Courts (Journal of Law No. 153, item 1269 with
further amendment).