Transcript Prezentacja programu PowerPoint

ADMINISTRATIVE
PROCEEDINGS
Administration in International Organizations
Lecture
General rules of administrative proceedings:
(articles 6-16 of the Code of Administrative Proceedings)
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.
General rules of administrative proceedings
1. Formulated as absolute ones:
- the rule of law,
- the rule of deepening the citizens’
trust in public administration bodies,
- the rule of providing factual and legal
information to parties and to other
participants of proceedings,
- the rule of parties active participation
in administrative proceedings.
2. Accept exceptions:
- the rule of written proceedings,
- the rule of validity of a final decision,
- the rule of two-instances proceedings.
General rules included in theCode:
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.
The principle of legality (lawfulness):
 set out in Articles 6 and 7 of the Code,
 due to this principle public authorities conducting administrative
proceedings shall act on the basis of provisions of law and shall
protect legality,
 it is a constitutional principle and is set out in art. 7 of the
Constitution of 1997 which states that: The organs of public authority
1.
shall function on the basis of, and within the limits of, the law,
 the prinicple of legality is a general rule for the whole legal system.
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:
1. in the 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.”
2. 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.”
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.
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 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.
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”.
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.
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.
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)
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).
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.
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.
The presentation is based on:
M. Możdżeń-Marcinkowski, Introduction to Polish administrative law. Second
revised edition, Warszawa 2012.
2. H. Izdebski, Public administration and administrative law, Warszawa 2005.
3. M. Bińkowska, A. Chechłowski, R.A. Walawender, The Code of Administrative
Proceedings, Warszawa 2014.
4. A. Korzeniowskia-Polak, Administrative procedure, [in:] Introduction to Polish law,
Anna Wyrozumska (ed.), Łódź 2005.
5. Code of Administrative Proceedings (Journal of Law 2013, item 267 with further
amendment – consolidated text)
6. Law on 30 August 2002 on the Proceedings before Administrative Courts (Journal
of Law No. 153, item 1270 with further amendment)
7. Law on 30 August 2002 on the system of Administrative Courts (Journal of Law
No. 153, item 1269 with further amendment).
1.