Principles of administrative procedure

 

The administrative procedure set out in the Code is governed by the principles specified in the Code. The general principles of the proceedings constitute a set of basic rules of conduct, which have been deemed by the legislature as fundamental and have been included in the separate Chapter 2 (Articles 6–16) of the Code. The above principles are not only directions, directives or recommendations – they are legal norms. The provisions of the Code containing the principles have a special position among others – they are superior in the hierarchic structure of provisions of the Code and they may be considered as more important due to their vast application in exceeding the scope of a single legal norm. In particular, they may serve as an interpretative directive with regard to the meaning of other procedural provisions, but also provisions of substantive law. The principles are of general nature, i.e. their specific meaning takes shape in the course of application of other provisions of the Code.

 

The following principles have been included in the Code:

 

1. The principle of legality, set out in Articles 6 and 7 of the Code, pursuant to which authorities conducting administrative proceedings shall act on the basis of provisions of law and shall protect legality;

 

Article 6. Public administration authorities shall act on the basis of provisions of law.

 

Article 7. In the course of the proceedings public administration authorities shall safeguard the rule of law and undertake, ex officio or upon application, any actions necessary to accurately clarify the facts of a matter and to dispose of the matter, taking into account the public interest and just interest of citizens.

 

2. The principle of taking into account the public interest and just interests of citizens ex officio, set out in Article 7 of the Code, pursuant to which the authority conducting the proceedings has a duty to identify the two interests and in case of a conflict in a particular case, the authority shall aim to reconcile (balance) the interests;

 

3. The principle of objective truth, set out in Article 7 of the Code, pursuant to which 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.

 

4. The principle of benefit of doubt as to the interpretation of legal norm s, set out in Article 7a.

 

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.

 

5. The principle of appropriateness, proportionality, set out in Article 7b.

 

Article 7b. Public administration authorities shall co-operate in the course of the proceedings in so far as it is necessary to fully clarify the facts and legal status of the matter, taking into account the public interest and just interest of citizens, as well as the efficient conduct of the proceedings by applying measures that are appropriate to the nature, circumstances and complexity of the matter.

 

6. The principle of deepening trust and established practice of determination of matters, set out in Article 8. The principle of deepening the trust of citizens to public authorities, set out in Article 8, has the broadest scope of all the principles. It covers the entire system of administration. The following rules of procedure result from this principle: (a) the accurate clarification of all circumstances surrounding the matter, (b) taking into account all applicable interests and addressing all statements and applications filed by the parties, (c) friendly attitude of clerks, (d) fast disposition of the matter (within time limits), (e) elimination of all adverse consequences of the authority’s misconduct for a party who acted in good faith, (f) 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.

 

Article 8

§ 1. Public administration authorities shall conduct the proceedings in such a manner as to deepen the trust of its participants in the public authorities, abiding by the principles of proportionality, impartiality and equal treatment.

§ 2. Without justified cause the public administration authorities shall not depart from the established practice of determination of matters of the same factual and legal status.

 

7. The principle of furnishing the parties and other participants with information, set out in Article 9. Pursuant to the principle: (a) the authorities shall duly and fully inform on factual and legal aspects which may influence the decision and (b) 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 the law (in particular by furnishing explanations and instructions). This principle revokes another fundamental principle established in the legal system, known as “ ignorantia iuris nocet ” (ignorance of the law is harmful).

Article 9. 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.

 

8. The principle of active participation (hearing) of the parties in the procedure, set out in Article 10. Pursuant to the principle, the authorities shall ensure that the parties may actively participate in every stage of the procedure, and, prior to issuing a decision, the authorities shall give the 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: (a) access the case files, (b) submit any evidentiary motions, (c) participate in the evidentiary proceedings, (d) give explanations, make demands and objections.

 

Article 10.

§ 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.

 

9. The principle of convincing the parties (explaining the grounds for rulings), set out in Article 11. 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. This principle requires that the decision be fully and diligently substantiated with regard to both: facts and applicable law.

 

Article 11. Public administration authorities should explain to the parties the grounds for deciding the matter in order to, if possible, enable the parties to satisfy the decision without the application of any coercive measures.

 

10. The principle of prompt and simple procedure, set out in Article 12. 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 particular, in order to implement this principle the time limits to dispose of the matter were introduced (immediately, 1 or 2 months). 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.

 

Article 12.

§ 1. Public administration authorities shall act in a detailed and prompt manner, applying the simplest possible measures to dispose of the matter.

§ 2. Matters in which it is not necessary to collect evidence, information and explanations, shall be disposed of immediately.

 

11. The principle of amicable resolution of matters, 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.

 

Article 13.

§ 1. In matters whose nature so permits, public administration authorities shall endeavour to amicably resolve disputed issues and to ascertain the rights and obligations being the object of the proceedings relating to matters for which they have competence, in particular by undertaking actions:

1)    with a view to persuade the parties to reach a settlement, in matters involving parties of opposing interests; and

2)    that are necessary to carry out mediation.

§ 2. Public administration authorities shall, at a given stage of the proceedings, undertake actions enabling to conduct mediation or settle the matter, and in particular they shall provide explanations as to the possibility and benefits of an amicable settlement of the matter.

 

12. The principle of written procedure, set out in Article 14. Pursuant to the principle, the authority has a duty to dispose of the matters in administrative procedure in writing or in the form of an electronic document. It is an exception to a general rule that in certain cases the matters may be disposed of verbally (if it is in the interest of the parties and no provision of law provides otherwise).

 

Article 14.

§ 1. All matters shall be disposed of in writing or in the form of an electronic document as defined in the Act of 17 February 2005 on Digitalisation of Operations of Entities Performing Public Tasks (Journal of Laws of 2017, item 570), to be served by means of electronic communication.

§ 2. Matters may be disposed of orally, if it is in the interest of the parties and no provision of law provides otherwise. The contents and essential reasons for such verbal disposal shall be entered in the records by way of minutes or annotation signed by the party.

 

13. The principle of two-instance procedure, set out in Article 15. Pursuant to this principle, each decision issued in the first instance may be appealed against to the administration authority of higher level. The lack of possibility to file the appeal is an exception and applies only to cases expressly specified by law (e.g. decisions issued by the supreme (central) state administration authority is not appealable, but an application may be submitted to the authority to reconsider the matter).

 

Article 15. Administrative procedure shall be two levels of instances, unless specific provisions provide otherwise.

 

14. The principle of durability of final administrative decision s, set out in Article 16 §§ 1 and 3. Pursuant to this principle, the 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.

 

Article 16.

§ 1. Decisions which are not appealable in the administrative course of instance or which are not subject to review shall be final. Such decisions may be quashed, amended, declared invalid or the proceedings may be reopened only in instances provided for in the Code or separate statutes.

§ 3. Final decisions that are not appealable to the court shall be legally binding.

15. The principle of the court review of the legality of an administrative decision, set out in Article 16 § 2. Pursuant to this principle, a claim may be submitted to the administrative court on the grounds that the decision conflicts with law.

 

Article 16.

§ 2. Claims may be filed with an administrative court on grounds of violation of law, on terms and according to procedures specified in separate statutes.