Issue No. 23: Hearings in administrative proceedings

The Polish Code of Administrative Procedure in Art. 86 allows the authority conducting the procedure to admit and take evidence of the hearing of the parties. The evidence from the hearing of the parties should be distinguished by explanations that serve the public administration body to determine the relevant circumstances of the case, to supplement the parties' submissions or to disclose evidence. From hearing the parties pursuant to art. 86 it is necessary to distinguish explanations, which are not means of evidence and which parties have the right to submit together with evidence to support them (Article 95 § 1 of the Code of Administrative Procedure). The statement that the party's explanation is incorrect, on the basis of which the administrative body accepted a certain fact as granted without proving this fact, is not a reason for resuming the proceedings.

The subject of the testimony under Art. 86 is a party to administrative proceedings, i.e. a natural person, legal person or organizational unit without legal personality. For the testimony from a legal person, applies the rule provided for in Article 300 § 1 of the Code of Civil Procedure, according to which persons belonging to the body authorized to represent it are heard as a legal person, whereas the authority should recognize whether all of those persons or only some of them are heard. This rule should be applied accordingly to questioning parties who are organizational units without legal personality.

The evidence from the parties' testimony is ancillary (subsidiary) evidence, because it should be used after other means of gathering evidence have been exhausted or when due to lack of evidence, there remain unexplained facts relevant to the resolution of the case. The exhaustion of evidence should be understood as a situation in which a public administration body has collected and fully assessed all evidence in accordance with the rules set out in the Code, but the material facts of the case remain unclear. In turn, the lack of evidence means a situation in which a public administration body and the parties to proceedings did not provide the evidence necessary to establish the existence or non-existence of facts relevant to the settlement of the case or to evidence of such factual circumstances became unadmissible, e.g. a witness exercised the statutory right to refuse to testify.

When taking evidence from the parties' testimony, the provisions of the Code of Administrative Procedure on witnesses shall apply (as appropriate). However, in relation to a party who unreasonably refuses to testify or refuses to answer questions, the coercive measures provided for in specific provisions which apply to a reluctant witness may not be applied. This does not exclude the possibility of imposing a fine on the party.

The position of a witness under the Administrative Procedure Code was analyzed in Issue No. 7. The other provisions of the CAP defining legal position of the party in administrative procedure and also in administrative court proceedings were presented in Item No. 5.

Article 86. [Examination of a party] If, after all the evidence has been submitted, or if, due to the lack thereof, there are facts material to the matter left unexplained, the public administration authority, in order to clarify facts may examine the party. Provisions regarding the examination of witnesses apply to the examination of the parties except for provisions concerning coercive measures.

Article 79. [Rights of the parties] [...]

§ 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 91. [Contents of the summons] § 1. The summons shall indicate the date, venue and subject of the hearing.

§ 2. Parties, witnesses, experts and state and self-governmental organizational units, organizations and other persons summoned to participate in the hearing shall be summoned in writing or in the form of an electronic document.

§ 3. If it is probable that, in addition to the parties summoned and already participating in the proceedings, other parties that are not known to the public administration authority may be concerned with the matter, the notification of the date, venue and subject of the hearing shall be also communicated by means of public announcement or in other manner customarily accepted in the given location or by making the document available in the Public Information Bulletin, on the own website of the relevant public administration authority.