Issue No. 5 Legal status of the applicant and an interested person (third party) in the administrative procedure

Administrative proceedings, as opposed to court proceedings, are not based on the principle of bilateralism. This rule means that there must be two parties and only two parties in a civil trial: the plaintiff, i.e. the person who is seeking legal protection, and the defendant, i.e. the person against whom the action is directed. The existence of two parties to the proceedings determines the admissibility of a civil trial. On the other hand, one or more parties may participate in administrative proceedings, and in the event of multiple parties to these proceedings, the provisions of the CAP do not provide grounds for examining and differentiating their procedural roles according to rules analogous to those adopted in the Code of Civil Procedure. On the other hand, it may be important to determine that parties with conflicting interests are involved in the proceedings (Art. 13 § 1 of the CAP).

 

Acquiring the status of a party in administrative procedure is not dependent on the procedure for its initiation. However, only the party at the request of which proceedings have been initiated may request the suspension of procedure pursuant to Art. 98 § 1 of the CAP and discontinuance of procedure pursuant to Art. 105 § 2. In the event there are multiple parties, instigating proceedings at the request of one party, in particular, shall not cause the other parties to become opponents of the case. In turn, the initiation of proceedings ex officio does not preclude the existence of parties with conflicting interests in this procedure. In procedure involving only one party, the other party is not the administrative body that handles the case in the form of a decision, even if the party's legal interest is contrary to the public interest. In a strict sense, this body does not have a legally protected interest, but is only obliged to use its statutory competences if there are substantive and procedural grounds for initiating administrative procedure. In addition, the recognition of a public administration body as the sole representative and carrier of the public interest does not take into account changes in its structure and content, as well as the importance of the parties in the process of defining this interest.

 

The existence of a party determines the existence (admissibility) of administrative procedure. Although Art. 1 item 1) does not establish such a premise, it is clear from the nature of the administrative procedure that its purpose is to issue a decision clarifying the rights and obligations of the parties to the proceedings. If a person does not have a legal interest within the meaning of Art. 28 of the Administrative Code, a request made by that person to a public administration body does not result in initiating proceedings (Art. 61). In the event that a party to the proceedings has lost the ability to participate in it or has died in its course, the proceedings shall be suspended or discontinued (Art. 97 and 105). It should be stated that it follows from the principle of the parties' participation in the proceedings that all parties should participate in the proceedings (from the date of its initiation). If a person who has a passive or possibly active title to participate in the proceedings as a party does not participate in the proceedings without their own fault, then the proceedings are deemed to have been defective and are subject to resumption. A party whose authority has not notified the initiation of proceedings ex officio or at the request of one of the parties may participate in pending proceedings, which does not limit its right to demand its resumption pursuant to art. 145 § 1 item 4 of the CAP.

 

Analysis of Art. 28, first of all, implicates that it contains provisions of two separate legal norms, which apply independently of each other, because the application of one of them excludes the application of the other. Although these two standards are independent of each other, the application of each of them leads to the same purpose, which is to examine and settle an individual case by way of a decision, i.e. to specify the rights or obligations on the basis of substantive law in force before the initiation of administrative proceedings.

 

One legal norm creates the part of Art. 28, which stipulates that the party will be the entity whose "legal interest or obligation relates to the proceedings", and the second legal norm - the second part of the provision, stating that the party will be the entity which "demands the acts of the authority due to its legal interest or responsibility". In the first case, there is a legal basis for summoning the entity that is a party to it, and in the second case, on the date of the request submitted by a party to a public administration body, proceedings are initiated.

 

An administrative body cannot conduct proceedings without a party, without an individually specified entity. If there are no parties, then the acts of the authority must be qualified as having the features of non-existent proceedings.

 

Application of two legal norms included in Art. 28 occurs in situations where should exist the two different premises.

 

In the case of the first norm, i.e. relating to the determination of the number of parties to proceedings instituted ex officio, these will be the following conditions:

1) substantive law establishes a specific public administration body as competent in the case, which this body must state in accordance with Art. 19;

2) the matter in which this body is competent can be settled only by issuing a decision (with the admission of a settlement), there are entities which - in the opinion of the public administration body - have a legal interest or obligation that will apply to the individual case.

 

In the case of the second norm, these premises will be as follows:

1) there is an entity recognizing itself as legitimate to appear in proceedings before a public administration body;

2) it is an entity having - in accordance with its own assessment of the facts and legal status of the case - a legal interest or obligation that can be decided by a decision;

3) this entity performs a procedural act by submitting, to the authority deemed competent, a request to initiate proceedings in its individual case, which will be effective when it is actually a party (Art. 61 §).

 

The link between the sphere of application of procedural law and substantive law at the initiation and in the course of proceedings is the concept of legal interest, which can be understood as objective, i.e. the actual need for legal protection. In relation to administrative procedure, the interest must be personal, own, individual, specific, objectively identifiable, and current but not potential. Satisfaction of interest may occur by means of a decision.

 

A party is a procedural institution because the legal regulation of its position in procedure results from many different provisions classified in various branches of law, e.g. as to legal capacity. The procedures which are regulated in the Code of Administrative Procedure extend to various matters in the field of public administration, but there is the need to apply it to the parties not only defines by administrative law, but also other public law provisions.

 

In addition to the parties of administrative proceedings, third parties who are entitled to perform procedural acts may participate in the administrative procedure, under the conditions provided for in the CAP. The forms and scope of participation of these persons in administrative proceedings are varied. The third parties to the proceedings, include entities with party rights (social organizations, prosecutors, Ombudsman and other entities with party rights as defined in specific provisions). Both the party and entities with the rights of parties are interested in the result of administrative proceedings, although the decision issued in these proceedings only specifies the rights and obligations of the parties, not entities with the rights of parties that participate in the proceedings due to the legal interest or obligation of "other persons" because the party demands an act of the authority, i.e. the initiation of proceedings due to its legal interest or obligation, while an entity with the rights of a party requests this action because of its statutory objectives or social interest (social organization) or the need to remove a state of illegality (prosecutor and Ombudsman).

 

The division of participants in the administrative procedure into parties and entities with party rights adopted in the CAP seems to correspond to the distinction in the doctrine of civil procedure between a party in the material sense and a party in the formal sense. A party (plaintiff) in a material sense is a person for whom and in the interest of whom the protection of his subjective rights is sought before a court and to whom the effects of a trial and a judgment passed therein are concerned, while a (plaintiff) party in a formal sense - a person who in his own name seeks legal protection before the court of the subject's own or other person's rights.

 

Below, there is a set of the most important provisions of the CAP defining legal position of the party in administrative procedure.

 

Article 7a. [Principle of benefit of doubt as to the interpretation of legal norms] § 1. If the object of the administrative proceedings is to impose an obligation on a party, to limit or to revoke a party’s right in a matter where doubts remain as to the meaning of a legal norm, such doubts shall be resolved in favour of the party, unless it is rendered impossible due to conflicting interests of the parties or interests of third parties which are directly affected by the outcome of the proceedings.

§ 2. The provisions of § 1 shall not apply:

1) if important public interest, including essential state interest, and in particular interest relating to state security, defence or public order so requires; and

2) to personal matters of functionaries and professional soldiers.

 

Article 9. [Principle of furnishing information]     Public administration authorities shall duly and fully inform the parties on factual and legal aspects which may influence the establishment of the parties’ rights and duties being the object of the proceedings. The authorities shall safeguard the parties and other persons participating in the proceedings, so that neither the parties nor the persons suffer any damage due to their ignorance of law and to this end the authorities shall furnish the parties and persons with necessary explanations and guidelines.

 

Article 10. [Principle of hearing of the parties]     § 1. Public administration authorities shall ensure that the parties may actively participate in every stage of the proceedings, and prior to issuing a decision the authorities shall give the parties an opportunity to present their position as to collected evidence and materials and submitted demands.

§ 2. Public administration authorities may depart from the principle specified in § 1 only if the matter must be decided without delay due to a threat to human life or health or due to threatening irreparable material damage.

§ 3. Public administration authorities shall, by way of annotation, enter in the records the reasons for departing from the principle specified in § 1.

 

Art. 14a. [The principle of enabling evaluation of the operation of offices managed by public administration bodies] Public administration bodies enable the parties to evaluate the operation of offices managed by these bodies, including the employees of these offices.

 

Article 28. [Definition] Each person whose legal interest or duty the proceedings concern or who requests the authority’s action due to his legal interest or duty, shall be a party.

 

Article 29. [Definitions] Only natural and legal persons may enjoy the status of a party, and with regard to state and self-government organizational units and social organizations – also entities not having the status of a legal person.

 

Article 34. [Appointment of a representative] § 1. A public administration authority shall apply to the court to designate a representative for an absent or incapacitated person, unless such a representative has already been appointed.

§ 2. If an action is to be taken immediately, the public administration authority shall appoint a representative for an absent person, who shall be authorized to act in the proceedings until an appropriate representative has been appointed by the court.

 

Article 36. [Time limit exceeded] § 1. The public administration authority shall notify the parties whenever it fails to dispose of the matter within the time limit specified, providing the reasons of delay and appointing a new time limit for the disposition of the matter, as well as instruct the parties of their right to submit a reminder notice.

§ 2. The same duty shall also be imposed upon the public administration authority, if the delay in disposing the matter has been caused by reasons not attributable to the authority.

 

Article 37. [Right to submit a reminder notice]      § 1. The party may submit a reminder notice, if:

1) the matter has not been disposed of within the time limit under Article 35 or specific provisions and within the time limit specified pursuant to Article 36 § 1 (inaction); or

2) the proceedings have been conducted for a longer time than is necessary to dispose of the matter (excessively lengthy proceedings).

§ 2. A reminder notice shall be reasoned.

§ 3. The reminder notice shall be submitted:

1) to the authority of higher level via the authority conducting the proceedings; or

2) to the authority conducting the proceedings – if no authority of higher level exists.

§ 4. The authority conducting the proceedings shall forward the reminder notice to the authority of higher level without undue delay, no later than within 7 days of the date the reminder notice was received. The reminder notice shall be forwarded together with relevant copies of the records. Copies may be drawn up in the form of an electronic document. The authority forwarding the reminder notice shall take a position thereon.

§ 5. The authority referred to in § 3 shall consider the reminder notice within 7 days of receipt thereof.

§ 6. The authority considering the reminder notice shall issue an order which:

1) states whether the authority hearing the matter is responsible for inaction or excessive length of the proceedings and, if so, whether it constituted a gross violation of law; or

2) in case inaction or excessive lengthiness has been ascertained:

a) it shall obligate the authority hearing the matter to dispose thereof by appointing a time limit for the disposal of the matter, if the proceedings have not been concluded; and

b) it shall demand that the reasons be clarified and persons responsible for inaction or excessive length of the proceedings be established, and where necessary, the authority shall take measures preventing inaction or excessive length of the proceedings in the future.

§ 7. The authority considering the reminder notice may ex officio amend the order referred to in § 6 by extending the time limit for the completion of the proceedings, if new factual circumstances material to the matter or new evidence come to light that require longer proceedings, of which the authority was not aware at the time of appointing the time limit.

§ 8. In the case referred to in § 3 subsection 2, the provisions of §§ 4, 6 and 7 do not apply. In case inaction or excessive length of the proceedings have been ascertained, the authority conducting the proceedings shall dispose of the matter immediately and order that the reasons be clarified and persons responsible for inaction or excessive length of the proceedings be established, and where necessary, the authority shall take measures preventing inaction or excessive length of the proceedings in the future.

 

Article 40. [Status of an attorney-in-fact] § 1.       The documents shall be served on the party, and if the party acts through its representative – on the representative.

§ 2. If the party had appointed an attorney-in-fact, the documents shall be served upon the attorney-in-fact. If several attorneys-in-fact were appointed, the documents shall be served only upon one of them. The party shall have a right to indicate such an attorney.

§ 3. In a matter initiated upon an application filed by two or more parties, the documents shall be served upon all of the parties, unless in the application the parties indicated one of them as authorized to receive service of documents.

§ 4. A party who does not have his place of stay or residence or registered office in the Republic of Poland or another Member State of the European Union and who has not appointed an attorney domiciled in the Republic of Poland and who does not act through the consul of the Republic of Poland, shall appoint an attorney for service in the Republic of Poland, unless service is effected by means of electronic communication.

§ 5. In case an attorney for service has not been designated, documents for this party shall be entered in the records and deemed duly served. The party shall be instructed thereon upon first service. The party shall be also instructed on his right to submit an answer to the document initiating the proceedings and an explanation in writing, as well as on who can be appointed as attorney-in-fact.

 

Article 41. [Change of address] § 1. During the course of the proceedings the parties and their representatives and attorneys-in-fact shall notify the public administration authority of any change of address, including email address.

§ 2. In case of failure to satisfy the obligation specified in § 1, service of documents to the original address shall be legally effective.

 

Article 61. [Ex officio and upon an application] § 1. Administrative proceedings shall be initiated upon the demand of a party or ex officio.

§ 2. Due to a particularly important interest of a party, a public administration authority may initiate the proceedings ex officio also in such matters where, in accordance with the law, an application of a party is required. The authority shall obtain consent of the party thereto in the course of the proceedings, otherwise the proceedings shall be discontinued.

§ 3. The day the demand has been submitted to the public administration authority shall be the day of opening the proceedings upon the demand of a party.

§ 3a. The day the demand has been entered into the ICT system of the public administration authority shall be the day when the proceedings commenced upon the demand of a party submitted by means of electronic communication.

§ 4. All persons being parties to the proceedings shall be notified that the proceedings have been initiated ex officio or upon an application of one of the parties.

Article 61a. [A refusal to initiate proceedings] § 1. If the demand specified in Article 61 has been submitted by a person who is not a party or due to other justified reasons the proceedings cannot be initiated, the public administration authority shall issue an order refusing to initiate proceedings.

§ 2. The order specified in § 1 shall be subject to complaint.

 

Article 62. [Co-participation] In matters where rights or obligations of the parties result from the same event and from the same legal basis and in which the same authority is competent, only one proceeding concerning more than one party may be initiated and conducted.

 

Article 73. [Rule] § 1. The party has the right to access to the records, and to make notes and copies. This right remains also after the proceedings are concluded.

§ 1a. Actions specified in § 1 are to be performed in the public administration authority premises in the presence of an employee of this authority.

§ 1b. Access to the records in the case referred to in art. 236 § 2, is allowed without the personal data of the person lodging the complaint.

§ 2. The party may demand that the copies of the records made by the party be certified to be true copies or that certified copies from the records be issued to the party, if that is justified by the party’s evident interest.

§ 3. The authority may provide the party with the possibility to perform actions specified in § 1 through its ICT system, after the party has been properly authenticated in the manner prescribed in Article 20a paragraph 1 or 2 of the Act of 17 February 2005 on Computerisation of Operations of Entities Performing Public Tasks.

 

Article 78. [Submitting evidentiary motions] § 1. A demand of a party concerning admission of evidence shall be allowed, if the object of the evidence is material to the matter.

§ 2. A public administration authority may refuse to allow the demand (§ 1) which has not been submitted in the course of evidentiary proceedings or during the hearing, if the demand concerns circumstances already proven by other evidence, unless such circumstances are material to the matter.

 

Article 79. [Rights of the parties] § 1. Each party should be notified at least 7 days in advance as to the venue and date of evidentiary proceedings involving examination of witnesses, experts or inspection.

§ 2. A party has the right to participate in evidentiary proceedings, may ask questions to the witnesses, experts and parties, and may submit explanations.

 

Article 79a. [Obligation to indicate the grounds that have not been satisfied or proved] § 1. In the proceedings initiated upon the request of a party, when advising on the right to comment on the evidence and materials collected as well as submitted demands, the public administration authority shall indicate the grounds which the party was obliged to satisfy or prove but which the party failed to satisfy or prove by the day of sending the information, which may result in a decision denying the party’s demand being issued. The provisions of Article 10 § 2 and § 3 shall not apply.

§ 2. Within the time limit allowed to the party for the presentation of comments as to the evidence and materials gathered and submitted demands, the party may submit additional evidence in order to prove that the grounds referred to § 1 have been satisfied.

 

Article 81. [Factual presumption] A factual circumstance may be presumed proven, if a party had the opportunity to present his opinion as to the collected evidence, unless circumstances specified in Article 10 § 2 occurred.

 

Article 81a. [Principle of the benefit of doubt as to interpretation of legal norms] § 1. If the object of the administrative proceedings is to impose an obligation on a party, to limit or to revoke a party’s right in a case where doubts remain as to the facts, such doubts shall be resolved in favour of the party.

§ 2. The provisions of § 1 shall not apply:

1) in case the parties to the matter have conflicting interests or the outcome of the proceedings directly affects the interests of third parties;

2) if under specific provisions the parties are required to prove specified facts;

3) if important public interest, including essential state interest, and in particular interest relating to state security, defence or public order so requires; or

4) to personal matters of functionaries and professional soldiers.

 

Article 95. [Submitting applications and evidence] § 1. At the hearing the parties may submit explanations, demands, proposals, objections and evidence in support thereof. Moreover, the parties may present their opinion as to the outcome of the evidentiary proceedings.

§ 2. A person presiding over the hearing may disallow questions asked to witnesses, experts and parties, if such questions are not material to the matter. However, upon demand of a party, the essence of the question should be included in the minutes.

 

Article 105. [Discontinuance of the proceedings]

§ 2. The public administration authority may discontinue the proceedings, if a party upon whose application the proceedings have been initiated applies therefor, and none of the other parties object thereto and it is not contrary to the public interest.

 

Article 106. [Co-operation of authorities] § 1. If pursuant to any provision of law the decision may be issued only after another authority expresses its position (expresses opinion or consent or expresses its position in any other form), the decision shall be issued only after such authority expresses its position.

§ 2. The authority disposing of the matter, while applying to another authority to express its position, shall notify a party thereof.

 

Article 109. [Service; decision given orally] § 1. The decision shall be delivered to the parties in writing or by means of electronic communication.

§ 2. In cases specified in Article 14 § 2, the decision may be announced to the parties orally.

 

Article 112. [Misdirection] Defective instructions included in the decision regarding the right of appeal, the effects of waiving the right of appeal or the right to file an action with a common court or a claim with the administrative court shall not prejudice the party who acted in accordance with the instructions.

 

Article 127. [Admissibility] § 1. A party may appeal against a decision issued in the first instance only to one instance.

§ 2. The public administration authority of higher level shall be competent to consider the appeal, unless the statute provides for another appellate authority.

§ 3. A decision issued in the first instance by a minister or self-government appeal board may not be appealed against, however, a party dissatisfied with the decision may submit to such authority an application to reconsider the matter; the provisions governing appeals shall apply mutatis mutandis to such application to reconsider the matter.

 

Article 137. [Withdrawal] A party may withdraw the appeal at any time before the appellate authority issues its decision. However, the appellate authority may refuse to allow the appeal to be withdrawn if due to the withdrawal a decision infringing the law or contrary to the public interest would remain in force.

 

Article 139. [Prohibition of reformationis in peius] The appellate authority may not issue a decision adverse to the appealing party, unless the decision appealed against represents a manifest violation of law or the public interest.

 

Article 141. [Rule; time limit] § 1. A complaint may be filed by a party against orders issued in the course of the proceedings only if the Code provides so.

§ 2. The complaints shall be filed within 7 days of the day of service of the order upon the party, and if the order has been communicated orally – of the day when the order was communicated to the party.

 

Administrative court proceedings are adversarial proceedings, and therefore there are two parties to it: the applicant - it is an entity authorized to lodge a complaint with an administrative court, as well as the opposite party, which is the body performing public administration whose action or inaction is the subject of the complaint. The legal situation of these entities is shaped by the principle of equality, which consists primarily of the fact that each party to the process has equal protection and equal opportunities which may be exercised by taking appropriate procedural steps. The plaintiff may not have more rights than the defendant and vice versa, although their procedural situation is different (the so-called principle of equality of procedural measures). The parties to the administrative court proceedings are the applicant and the authority. The Law on Proceedings Before Administrative Courts, does not contain a definition of the authority, and provides that it is the authority whose action or inaction is the subject of a complaint.

 

In the administrative court proceedings, in addition to the parties, by law, participate as persons with right of the party who took part in the administrative proceedings and did not lodge a complaint, if the outcome of the court proceedings concerns their legal interest. These entities may participate both on the part of the applicant and the public administration body.

 

Art. 32. Parties to a proceeding in relation to the administrative court case shall include the petitioner and the authority whose action, failure to act or excessive length of proceedings is a subject-matter of the complaint.

 

Art. 33. § 1. The person who has taken part in the administrative proceeding, and has not lodged a complaint, where the outcome of the court proceedings concerns his/her legal interest, shall be a participant in that proceeding having the rights of a party.

§ 1a. If a special provision provides that parties to a proceeding before a public administration body shall be notified of acts or other actions of the body by way of an announcement or in any other manner of publication, a person that has participated in the proceeding and has not lodged a complaint, and the outcome of the court proceeding concerns his or her legal interest, shall be a participant in that proceeding having the rights of a party if the person files a request to join the proceeding before the commencement of the hearing.

§ 1b. If the outcome of court proceedings does not relate to a legal interest of the persons referred to in § 1 and 1a and if they request that they be allowed to participate in the proceedings, the court shall, in camera, render an order refusing the request to participate in the case. The order shall be subject to an interlocutory appeal.

§ 2. A request to join a proceeding as a participant may also be submitted by a person that has not participated in administrative proceedings if the outcome of the proceeding concerns his or her legal interest as well as by a social organisation, as referred to in art. 25 § 4, in cases concerning other persons if the case relates to the scope of its statutory activities. The order shall be made by the court in camera. An order refusing the

request to participate in the case shall be subject to an interlocutory appeal.

Issue No. 6 “Mechanisms for interdepartmental interaction of administrative authorities”

Matters referring to this issue were analyzed in Issue No. 2 an Issue No. 16.

Issue No. 7 “Facilitating mechanism of witness participation in administrative procedures”

Witness statements. A witness is a natural person who, in procedure regarding the rights or obligations of another entity, gives evidence of perceived facts or of which he has received information from others. From the accepted definition of the concept of a witness, it follows that the ability to act as a witness only has natural persons who have knowledge of specific facts that are relevant to establish the facts in a given administrative case. Within such boundaries, the ability to act as a witness is limited by the provisions of the Code of Administrative Procedure.

These limits come from two types of reasons:

Factual reasons. This group of restrictions includes the provision that persons who are incapable of being witnesses are persons unable to perceive and communicate their observations (Art. 82 item 1) of the CAP). Whether a natural person of legal age or a minor may act as a witness is determined by actual and current ability to perceive or communicate their observations at a given time. The assessment of this ability belongs to the deciding authority in the case, and in the case of using legal aid institutions - to the authority receiving the testimony of a witness.

Legal reasons. These restrictions are listed in art. 82 item 2) and 3) of the CAP; being a witness is excluded for: persons under an obligation to keep classified information confidential with regard to circumstances to be kept confidential, unless they have been released from the obligation to keep confidentiality under applicable provisions of law; clergymen with regard to facts revealed under the seal of confession. Persons belonging to this group do not have the capacity to act as a witness only within the limits prescribed by law.

A natural person to whom these limits do not apply has a legal obligation to act as a witness. The performance of this obligation is limited by institution of the right to refuse to be testified and the right to refuse to answer questions.

The right to refuse testimony applies only to the party’s spouse, ancestors, descendants and siblings of the party as well as first-degree relatives by marriage and persons being in an adoptive, wardship or guardian relationship with the party. The privilege to refuse testimony shall survive the dissolution of marriage, adoption, wardship or guardianship.

A witness has the right to refuse to answer a question, if the answer would expose him or the persons closest to him (as listed above) to criminal liability, disgrace or direct material damage or shall cause the infringement of the obligation to keep a legally protected professional secret. The adjudicating authority assesses whether a person has the right to refuse to testify or the right to refuse to answer a question.

The mode of receiving testimony from a witness has not been regulated in the CAP. Only in art. 83 § 3 of the CAP it is stipulated that before collecting testimonies, the public administration authority shall instruct the witness of his privilege to refuse testimony and answers to questions and liability for perjury. The Code of Administrative Procedure does not introduce a swearing-in of a witness or a promise to testify the truth from a witness.

The Code of Administrative Procedure does not regulate the form of a witness testimony. There is opinion in legal doctrine that a witness can only testify orally. This results from the very content of the witness interview. However, taking into account Art. 50 § 1 and Art. 54 § 1 of the CAP, relating to calls in which the possibility of giving evidence in writing is provided, it should be considered that a witness may also give evidence in writing. The authority conducting the proceedings is obliged to draw up a report from the oral testimony of a witness (Art. 67 § 2 item 2 of the CAP).

Article 82. [Incapability of being a witness] The following persons are incapable of being witnesses: