Issue No. 30: Judicial review proceedings

The Law on Proceedings Before Administrative Courts (LPBAC) regulates four means of review to administrative courts: complaint and objection to the decision - directed to voivodship administrative courts, and cassation appeal and interlocutory appeal - in case of Supreme Administrative Court.

 

Complaint.

 

Everyone who has a legal interest therein, a public prosecutor, the Commissioner for Human Rights (Ombudsman), the Commissioner for Children's Rights and a social organisation, within the scope of its statutory activity and in matters affecting legal interests of other persons, provided that it has taken part in administrative proceedings, is entitled to lodge a complaint to voivodship administrative court. A complaint may be lodged after the exhau­stion of the means of review which have lied with the complainant in procedures before an authority competent in the matter. Exhausting appeal measures means a situation in which a party no longer has any appeal measure, such as complaint, appeal or reminder as envisaged by the act, at its disposal. A complaint to an administrative court shall be lodged through the authority whose action, failure to act or excessive length of proceedings has been challenged. If prior to the forwarding of complaint of one party of administrative procedure to the court another party to the same procedure has applied to the body for reconsideration of the case, the body should consider the complaint as an application for reconsideration, of which it shall immediately notify the appealing party.

 

The court is obligated to reject the complaint:

1) if the case does not fall within the jurisdiction of the administrative court;

2) lodged after the expiry of prescribed time limit;

3) when formal deficiencies of the complaint have not been corrected within the prescribed time limit;

4) if the matter subject to the complaint between the same parties is pending or has already been decided by a legally binding decision;

5) if one of the parties has no capacity be a party in court or if the complainant does not have procedural capacity and he/ she has not been substituted by a statutory representative or there are defects in the composition of the bodies of an organisational unit being the complainant which prevent it from operation;

6) if the legal interest or right of the person lodging a complaint against the resolution or act were not breached in the manner provided for in the special provision;

7) if lodging of a complaint is inadmissible for other reasons.

 

The court shall determine a case within its limits while not being bound by the charges and requests of the complaint and the invoked legal basis and may not issue a decision in disfavour to the complainant, unless the court finds that there has been a viola­tion of law resulting in the declaration of invalidity of the challenged act or action.

 

The court, granting the complaint against an administrative decision or order, shall:

1) set aside the decision or order in whole or in part, if it finds that there has been: a) a violation of substantive law, that have affected the outcome of the case, b)a violation of law which provides the basis to reopen administrative proceedings, c) other breach of procedural provisions, if it would have substantially affected the outcome of the case;

2) find that the decision or order is invalid in whole or in part, if there exist grounds specified in the Code of Administrative Proceedings or in other provisions;

3) find the decision or order to be issued in violation of law, if there exist grounds specified in the Code of Administrative Proceedings or in other provisions.

 

Objection to the decision.

 

Due to Art. 138 § 2 of the Code of Administrative Procedure, the appellate authority may quash the decision appealed against in whole and may remand the matter for reconsideration to the authority of the first instance, if this decision has been issued in contravention to the provisions relating to proceedings, and if the scope of the matter necessary to clarify the matter has significant influence on resolving this matter. While remanding the matter the appellate authority may indicate the circumstances which should be taken into account in reconsidering the matter. Such a decision may not be appealed against, but a party unsatisfied with the decision may file an objection to the decision to the voivodship administrative court. Principally, the provisions concerning the complaint apply to an objection to the decision.

 

Cassation appeal.

 

A judgment or an order concluding the proceedings in the case rendered by a voivodship administrative court (with some exceptions), shall be subjects to a cassation appeal to the Supreme Administrative Court. It may be lodged by a party, a public prosecutor, the Commissioner for Human Rights (Ombudsman), the Commissioner for Small and Medium Entrepreneurs or the Commissioner for Children's Rights after a transcript of a judicial decision with reasons given has been served to them.

 

A cassation appeal may be made on the following grounds:

1) the violation of substantive law caused by its misinterpreta­tion or improper application;

2) the breach of procedural rules, if that infringement could have substantially affected the outcome of the case.

A cassation appeal shall be lodged with the court which has issued the challenged judgment or order, within 30 days from the day of service on the party of a transcript of the judicial decision with reasons given. The Supreme Administrative Court shall hear the case within the limits of the cassation appeal, however, it take into account - on its own authority - invalidity of the proceedings. The invalidity of the proceedings occurs:

1) if making the recourse to the court was inadmissible;

2)if the party has not had the capacity to be a party in court or procedural capacity, it has not had a body appointed to represent it or statutory representative, or when the agent of the party has not been adequately authorised;

3) if the proceedings already instituted before an administrative court are pending in the same case or if a legally binding decision has been issued in such case;

4) if the formation of adjudicating panel has not complied with the provisions of law or if a judge disqualified by virtue of statute has taken part in the hearing of the case;

5) if the party has been deprived of the possibility to defend his/her rights;

6) if the voivodship administrative court has adjudicated in the case which falls within the jurisdiction of the Supreme Administrative.

Cassation appeal shall be dismissed, if there is no justified grounds or if the challenged judicial decision complies with the law despite wrong reasons given. If the cassation appeal is granted, the Supreme Administrative Court shall reverse the challenged judicial decision in whole or in part and remand the case for reexamination to the court which has issued the decision, and if that court is not able to examine it in a different panel - to another court. If the case is remanded for reexamination, the court shall examine it in a different panel.

 

Interlocutory appeal.

 

Interlocutory appeal may be lodged to the Supreme Administrative Court from the orders of a voivodship admini­strative court in instances prescribed in statute, and also from the orders dealing with:

1) the transfer of the case to another administrative court;

2) dismissal of a complaint in cases pointed out in LPBAC;

3) discontinuation of proceedings;

24the staying or refusal of the execution of the decision, order, another act or action, referred to in Art. 61 of LPBAC;

4)the refusal to give reasons for a judgment;

5) the correction or interpretation of a judicial decision or refusal thereof;

6) dismissal of a request for the supplementation of the judgment or refusal to grant it;

7) dismissal of a motion for disqualification of a judge;

8) rejection of a cassation appeal;

9) rejection of an interlocutory appeal;

10) reimbursement of costs of the proceedings, if the party has not filed a cassation appeal;

11) imposition of a fine.