ADMINISTRATIVE LAW (PART I)

Class: 4

A SET OF GENERAL PRINCIPLES OF ADM. LAW SEEMS TO HAVE ALREADY PREVAILED

GLOBALLY:• the principle of legality, • the right to participate in the decision-making process, • the right to prior hearing of the interested and affected parties, • the right to consultation, • the right to access documents, • the obligation to justify administrative acts and decisions, • the principle of founding decision on scientifically sound and provable grounds,

• the principle of proportionality, • the principle of transparency.

One can find general rules (prinicples) of adm. law in Articles 6-16 of the Polish Code of Adm. Proceedings (Chapter 2, Section I)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.

4. General principles of administrative proceedings constitute a set of basic rules of conduct, which have been deemed by the legislator as fundamental and have been included in the separate Chapter 2 of the Code.

5. The above principles are not only directions, directives or recommendations – they are legal norms.

6. Infringement of any general principle must be treated as any other infringement of any universally legal norm and of any provisions of the Code of Administrative Proceeding.

7. During the course of administrative proceedings they must be observed ex officio by administrative bodies.

8. General provisions have a specific position among other provisions of the Code. They are superior in the hierarchic structure of provisions of the Code.

9. General provisions may be considered as more important due to their vast application exceeding the scope of legal norm.

10. General provisions may serve as interpretative directive with regard to the meaning of other procedural provisions, but also provisions of substantive law.

11. One can find the source of these provisions in the Constitution.

12. General provisions are in accordance with principles of democratic state under the rule of law. They are also in accordance with EU and international standards.

13. General provisions protect legal position and legal interests of parties to the proceedings.

GENERAL PRINCIPLES:

Formulated as absolute ones:1. The rule of law2. The rule of deepening the

citizens’ trust in public administration bodies

3. The principle of providing factual and legal information to parties and to other participants of proceedings

4. The principle of parties active participation in administrative proceedings

Accept exceptions:1. The rule of written

proceedings2. The rule of validity of a final

decision3. The rule of two-instances

proceedings

GENERAL PRINCIPLES:

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.

1. The principle of legality (lawfulness), set out in Articles 6 and 7 of the Code.1. Pursuant to this principle public authorities conducting administrative proceedings shall act on the basis of provisions of law and shall protect legality.2. It is a constitutional principle:- it is set out in Article 7 of the Constitution of 1997 which states that: The organs of public authority shall function on the basis of, and within the limits of, the law.

3. The prinicple of legality is a general rule for the whole legal system. 4. 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.For example in its 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.”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.”

1. The Supreme Administrative Court in one of its judgements stressed that a situation in which a public administration body has aplied provisions that have not been published yet and citizens have not had the chance to learn them is a violation of the prinicple of legality.

2. According to the Supreme Administrative Court, an individual shouldn’t bear negative results of a defective functioning of State bodies with respect to the stipulation and publication of law.

1. When it comes to the rule of legality it has to be born in mind that due to this rule public organs are obliged to act under and pursuant to universally binding provisions of law (only generally binding acts can be legal basis for administrative decision).

2. The category of universally binding acts included:- the Constitution,- statues (acts),- ratified treaties,- acts of secondary legislation issued pursant to an within the scope of an explicit statutory authorisation (ordinances),

- enacments of local law.

Guidelines or instructions adopted by ministers for their officials cannot be a basis for administrative decisions settling rights or obligation of individuals.

The principle of legality:

1. An administrative body conducting administrative proceedings is a guardian of legality.

2. An administrative body conducting administrative proceedings is obliged to take only exclusively lawful actions.

3. Administrative body is obliged to safeguard the observance of law and order of all participants in the proceedings.

4. Administrative body is liable for the breach of law that has occurred in the course of proceedings.

5. Administrative body will bear the consequences of a breach of law irrespective of who is the source of breaching.

2. The principle of taking into account the public interest and just interests of citizens ex officio1. 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.

1.In case of discretionary decisions, the role of administrative bodies isn’t limited to an examination whether the statutory premises have been fulfilled. In such case law provides for the posibility of administrative bodies to choose one of the options stipulated by it (such provisions usually have the following wording: „an administrative authority may…”). In adopting such a decision an administrative body must observe the principle of taking into account the public interes and the legitimate interest of individuals (however, the public interest is also equally important).

2.According to the judgement of 11 June 1981 of the Supreme Administrative Court:

„An administrative body acting pursuant to provisions of substantive law providing for a disretionary character of a decision is obliged to settle the matter in a way that is in accordance with the legitimate interest of an individual unless it is contrary to the public interest and unless it exceeds the limits of disretion”.

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 objective (substantive) truth:

1.administrative body is obliged to collect and examine the evidence in its entirety and in a manner allowing to establish facts of a case as they are in reality,

2.the essence of the principle of substantive truth is the imposition on an administrative body of the obligation to conduct comprehensive explanatory proceedings,

3.failure to clarify or an insufficient clarification of the facts of a case always produce a defective procedure.

4. 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.

Two more directives derive from the principle of reinforcing citizens’ confidence in State bodies. These directives are obligations for administrative authorities’ officials:

1.an official should be competent and kind to a petitioner,

2.if facts of a case and legal enviroment are the same (or similar), similar decisions should be adopted.

Citizens want to be sure that their matters will be handled in the same way by competent and responsible bodies.

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”.

Pursuant to this principle: 1.authorities shall duly and fully inform on factual and

legal aspects which may influence the decision,2.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 law (in particular by furnishing explanations and instructions),

3.this principle revokes another fundamental principle established in the legal system, known as “ignorantia iuris nocet” (ignorance of the law is harmful).

1. An administrative body is obliged to provide information about factual and legal circumstances that may have an impact on a decision in a particular matter. For example: an administrative body should inform about:- necessity to fill in an appropriate form, - obligation to collect one’s identification card personally, - necessity to establish a proxy in writing or to meet certain time limits,

- manner or issuing specific documents.2. An administrative body isn’t obliged to provide information on the circumstances that aren’t related to the matter or don’t have impact on a decision in the matter.

In its rulling of 7 December 1984, III SA 729/84, the Supreme Administrative Court held that the administrative’s body obligation to inform the parties about factual and legal circumstances that may have an impact on the specification on these parties’ rights and duties is imposed especially in matters where it may be concluded from the circumstances that a given party is dealing for the first time with such factual and legal problems.

According to the judgement of the Supreme Administrative Court of 27 March 1985 (III SA 153/85):„An administrative body’s failure to properly instruct the parties should be treated as infringement of law which has had an impact on issuing a decision”.

1. An administrative body must assure that neither parties nor other participants of proceedings will incur damage due to ignorance of law.

2. An administrative authority protect against a damage not only parties of the proceedings, but also witnesses or experts.

3. For instance, an administrative body should instruct the parties and other participants of proceedings about the consequences of their failure to appear on summons.

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.

1. According to the principle of parties’ active participation in administrative proceedings - before a decision is adopted party has the right to analyse collected evidence and to deliver his/her opinion on this evidence.

2. In the judgement on 7 March 1989, SA/Kr 11/89 (not published), the Supreme Administrative Court judged:„If an institution of appeal carries out complementary proceedings in a matter, it is obliged to make it possible for the parties to deliver an opinion on additional evidence and dossiers before the decision is rendered”.

3. One more obligation of administrative bodies which derives from above mentionded rule is that an administrative body is obliged to inform a party’s representative about all of the previously mentionded action (notices, summons and decisions should be delivered also a representative).

4. Ommiting a party’s representative by an administrative body is equal to ommiting the party in administrative proceedings and justifies a revival of the proceedings (rulling of 10 February 1987, Sa/Wr 875/86, ONSA, 1987, No 1/13; OSPiKa 1989, No 4/79).

Remember that a party has a right not an obligation, to take an active part in the proceedings.

5. The obligation to make administrative files avaiable comes from the principle of parties’s active participation in administrative proceedings:

• parties must have the possibility of real participation in the proceedings,

• parties may take notes and make copies of the case files,

• parties have the right to ask an administrative body for certification of the copier made,

• parties may request an administrative body to get certified copies from the record. However, such a request must be justified by an important interest of the party. This right can be limited only in case of State confidentiality or due to a legitimate interest of the State.

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.

The Supreme Administrative Court has stressed two additional aspects of this principle:1)an administrative body should explain why

given provisions were applied, or why given provisions were considered inapprioprate for settled facts of the case,

2) if an administrative body doesn’t take into account the statements that the party considered relevant for the settlement of the case, it will infringe the principle of convincing.

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)

Three time limits for ending administrative cases:1)immediately: an administrative body should settle

immediately/without unnecessary delay, matters that can be considered upon the basis of evidence presented by the party, and related proceedings can be initiated upon the basis of facts and evidence which are known ex officio to the administrative body concerned or those facts and evidences that can be identify from the data the body has at its disposal.

2)one month: time limit for settling a matter is one month from the date the proceeding was initiated whenever it is necessary to carry out explanatory proceedings in order to identify all of the circumstances that are relevant for the settlement of the matter.

3) two months: the settlement of a particular complicated matter should be completed within two months from the date of the initiaton of proceedings as the latest.

4. separate provisions regulate time limit for the settlement of a matter by a body of appeal.

In general administrative proceedings a body of higher instance has one month to settle an appeal that was brought before it.

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).

According to the principle of two-instances, the party has the right to have his/her matter consider twice, as regards to its merit, by two administrative bodies of different authority:1) by a body that has issued the decision in the first instance and2) by a body of higher instance.

In the judgement of 12 November 1992, V SA 721/92, the Supreme Administrative Court stated, however, that it is not sufficient that two decisions on a matter have been issued by two bodies of different authority in order to find that the principle of two instances has been satisfied.

It's also necessary that each of the bodies issuing a decision carry out proceedings allowing it to reach the purpose for which the proceedings have been initiated.

From the principle of two-instances proceedings arise two obligations for public administrative bodies:1) the obligation to issue final acts in the proceedings in a written form,2) the obligation to put in written form all of the actions that are relevant to the settlement of a matter of the course of the proceedings.The principle of written form in proceedings is applied through regulations on minutes and notes.

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.

a. A final decision, is a decision, against which any appeal cannot be made in administrative proceedings (a final decision is assumed to be valid. This means that until it has been repealed or declared invalid, a decision may be executed by the entitled party).

The appeal cannot be made against the decision taken:1) by a body of appeal,2) in the first instance where the time limit for appeal has already elapsed,3) by a first-instance body to which an appeal cannot be made pursuant to specific provisions.

1. The principle of durability of a final decision doesn't mean that defective decision will remain legal due to the fact that it is a final decision.

2. A final decision can be modified or repealed, and it can be declared invalid only in cases and in a mode that are set out by the Code or by specific Acts.

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.

Thank you for your attention!The presentation was based on:1. 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 2010.4. 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).