«Administrative Procedure: The Way to Transparency and Justice»

«Administrative Procedure: The Way to Transparency and Justice»

After the Euro-integrational Law of Ukraine “On Administrative Procedure” (the Law 2073-IX [1]) came into force, Ukraine started the next stage of the development of administrative justice in the state. This Law is a kind of a breath of fresh air for society because it opens doors for a new era of interaction between the state, local governmental authorities, and people, giving them equal rights and opportunities at every step of the administrative procedure.

Actually, Law № 2073-IX changes the “rules of the game”, implementing competitiveness to enable each party to represent its reasons and substantiations before the solution is approved. In my humble opinion, it is an innovation step giving individuals a real opportunity to take part directly in a procedure for solving administrative issues relating to them.

It’s worth reminding, that before passing the Law, there wasn’t a general administrative procedure (the AP) in Ukraine. All the spheres of interaction between the State and its citizens and business have been regulated by different special laws, decrees, instructions, etc., leading to multiple gaps, disagreements, and differences in approaches between different regulatory acts.

Article 2 of the Law [2] states that the administrative procedure is a legally determined procedure of consideration and solution of a case. The AP finishes by the adoption of an administrative act, and the fulfilment thereof, in established cases.

It should be mentioned here that one of the most essential features of the new law is its relation to a wide range of spheres, from control and supervision over economic activities to rendering administrative services.

How to start an administrative procedure?

According to Article 36 of the Law [3], administrative proceedings may start either with the application of a person or by the initiative of an administrative body. The first variant serves for administrative services, and the second one – for inspecting activities.

The Law stipulates three grounds to start administrative proceedings by an initiative of an authority:

• fulfilment of the body’s legal authorities,
• an event, the law considers to be a ground to adopt an act,
• infringement of a person’s right or legal interest.

A person has a right, according to the procedure established by the Law, to file a claim to an administrative body, demanding to adopt an administrative act to ensure the fulfilment of such person’s right, freedom, or legal interest, even legally prescribed obligation, if the person thinks that the consideration and fulfilment of such a demand are in the competence of the administrative body.

The respective claim could be filed by a single person (an individual claim) or by a group (a group claim). The claim can be filed orally or in writing. Please pay attention that a written application could be made on paper or in a digital form. A person can submit the claim personally or using public e-portals, Centres for administrative services, or other legally authorized bodies. Moreover, the application must be registered on the day of submission, and the applicant may demand to confirm the receipt of the application in writing. In other words, it is forbidden to reject such a claim.

It should be noted that part 2 of Article 1 of the Law [4] contains a range of relations, where it is not applied: national security and defence, citizenship, asylum, national awards, oblivion; adoption of regulative acts; propositions, recommendations from citizens; contestation of public procurement procedures.

Who can participate in an administrative proceeding?

Article 27 of the Law № 2073-IX [5] states that the following could be a participant of an administrative procedure:

• a person, whose right, freedom, or legal interest or liability shall be solved by an administrative act (an addressee), including:
• a person, who applies at an administrative body asking to adopt an administrative act (an applicant) to protect his or her right, freedom, legal interest, or to fulfil a legally established liability;
• a person regards whom an administrative body has initiated an administrative proceeding;
• a person, who applies to an administrative body with a claim (a claimant) to protect his or her right, freedom, or legal interest;
• another person, whose right, freedom, or legal interest is negatively affected or could be affected by an administrative act (an interested person).

Among the other, Article 29 of the Law [6] stipulates for an administrative body an opportunity to involve – upon a participant petition or own initiative, as well as in cases established by law – a person, who supports the consideration of the case and whose participation is required for the case consideration, namely:

• a witness;
• an expert;
• a specialist;
• a translator.

What terms are legally established to consider administrative cases?

Article 34 of the Law [7] prescribes that the term to consider a case upon an application and to re-consider a case under a claim should not exceed thirty calendar days. If the case includes hearings, the term shall not exceed forty-five calendar days. By resolution of an administrative body, the term might be extended once, but for not over fifteen calendar days.

Please pay attention that terms to solve specific categories of cases are established by special laws.

Talking about contestation of an administrative act, Article 80 of the Law [8] provides thirty calendar days to submit a respective claim.

An administrative act is valid since it comes into force and remains valid till its expiration (Article 76 of the Law [9]).

Part VI of the Law enables a person, whose rights are infringed, to contest an administrative act, procedural solutions, acts or omissions of an administrative body.

On responsibility.

An administrative act is binding. An administrative body can determine the procedure of its fulfilment, for instance, postpone its (Article 93 of the Law [10]. If an addressee fails to fulfil it voluntarily, the administrative body makes a ruling to impose a penalty on the responsible person:

1) from 70 to 530 non-taxed minimum incomes of a citizen – for individuals;

2) from 175 to 1765 non-taxed minimum incomes – for individual entrepreneurs, social entities, and legal entities.

In the case of repeated failure to fulfil the act, the penalty can be duplicated (Article 96 of the Law [11]).

An administrative body is entitled to apply a direct influence on the responsible person. If such a person maintains resistance to the application of the act, the means of compulsion could be imposed thereon according to the procedure, within the limits and in manner, prescribed by the Law (Article 99 of the Law [12]).

Conclusions.

Considering the above, I think that Law 2073-IX implements unified rules for relations of business and ordinary people with the state instead of multiple laws and related acts. The Law brings our state closer to the EU standards. Ukraine remains one of the last states in Europe without legal regulation of a general administrative proceeding [13]. For instance, France adopted the Code of Relations between the public and administration [14] in 2015. In the same year, Spain adopted the Act “On General Administrative Procedure of State Administration” [15], while in Germany such law has existed since 1977 [16].

Thus, provisions of the Law № 2073-IX establish framework regulation for principles and rules of interaction, ensuring legal protection to people, foreseeability and legality of governmental authority acts. The Law implements innovations, like ensuring persuading evidence, people’s participation in a procedure, option of a pre-court contestation. I’m sure, these measures shall promote and ensure justice and transparency in relations between the state and its citizens.

1. Law of Ukraine “On Administrative Proceeding” -№ 2073-IX (Digital resource) // web-page of the Verkhovna Rada of Ukraine. – Access https://zakon.rada.gov.ua/laws/show/2073-20#Text
2. Article 2 of the Law of Ukraine “On Administrative Proceeding” -№ 2073-IX (Digital resource) // web-page of the Verkhovna Rada of Ukraine. – Access https://zakon.rada.gov.ua/laws/show/2073-20#n16
3. Article 36 of the Law of Ukraine “On Administrative Proceeding” -№ 2073-IX (Digital resource) // web-page of the Verkhovna Rada of Ukraine. – Access https://zakon.rada.gov.ua/laws/show/2073-20#n263
4. Article 1 of the Law of Ukraine “On Administrative Proceeding” -№ 2073-IX (Digital resource) // web-page of the Verkhovna Rada of Ukraine. – Access https://zakon.rada.gov.ua/laws/show/2073-20#n6
5. Article 27 of the Law of Ukraine “On Administrative Proceeding” -№ 2073-IX (Digital resource) // web-page of the Verkhovna Rada of Ukraine. – Access https://zakon.rada.gov.ua/laws/show/2073-20#n168
6. Article 29 of the Law of Ukraine “On Administrative Proceeding” -№ 2073-IX (Digital resource) // web-page of the Verkhovna Rada of Ukraine. – Access https://zakon.rada.gov.ua/laws/show/2073-20#n203
7. Article 34 of the Law of Ukraine “On Administrative Proceeding” -№ 2073-IX (Digital resource) // web-page of the Verkhovna Rada of Ukraine. – Access https://zakon.rada.gov.ua/laws/show/2073-20#n247
8. Article 80 of the Law of Ukraine “On Administrative Proceeding” -№ 2073-IX (Digital resource) // web-page of the Verkhovna Rada of Ukraine. – Access https://zakon.rada.gov.ua/laws/show/2073-20#n635
9. Article 76 of the Law of Ukraine “On Administrative Proceeding” -№ 2073-IX (Digital resource) // web-page of the Verkhovna Rada of Ukraine. – Access https://zakon.rada.gov.ua/laws/show/2073-20#n583
10. Article 93 of the Law of Ukraine “On Administrative Proceeding” -№ 2073-IX (Digital resource) // web-page of the Verkhovna Rada of Ukraine. – Access https://zakon.rada.gov.ua/laws/show/2073-20#n757
11. Article 96 of the Law of Ukraine “On Administrative Proceeding” -№ 2073-IX (Digital resource) // web-page of the Verkhovna Rada of Ukraine. – Access https://zakon.rada.gov.ua/laws/show/2073-20#n773
12. Article 99 of the Law of Ukraine “On Administrative Proceeding” -№ 2073-IX (Digital resource) // web-page of the Verkhovna Rada of Ukraine. – Access https://zakon.rada.gov.ua/laws/show/2073-20#n793
13. Manual for Public Servants THE LAW “ON ADMINISTRATIVE PROCEEDING”: Rules for Interaction between the State and Business (Digital resource) // web-page: api.par.in.ua. – Access https://api.par.in.ua/uploads/progress_report/file_uk/30/%D0%9F%D0%BE%D1%81%D1%96%D0%B1%D0%BD%D0%B8%D0%BA_%D0%97%D0%90%D0%9F_2022.pdf
14. Code des relations entre le public et l’administration (The Code of relations between the public and administration) (Digital resource) // сайт www.legifrance.gouv.fr. – Access https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000031366350/LEGISCTA000031367312/#LEGISCTA000031367312
15. Ley 39/2015, de 1 de octubre, del Procedimiento Administrativo Común de las Administraciones Públicas (The Law on general administrative procedure of state management” (Digital resource) // web-page www.boe.es. – Access https://www.boe.es/boe/dias/2015/10/02/pdfs/BOE-A-2015-10565.pdf
16. Administrative Procedure Act [Verwaltungsverfahrensgesetz (VwVfG)] of May 25th 1976 The Law on Administrative Procedures (Digital resource) // web-page docreader.readspeaker.com. – Access  https://docreader.readspeaker.com/docreader/?jsmode=1&cid=btste&lang=en_uk&url=https%3A%2F%2Fwww.bmi.bund.de%2FSharedDocs%2Fdownloads%2FEN%2Fgesetztestexte%2FVwVfg_en.pdf%3Bjsessionid%3D2F7D3301C2882C135D9E94AA6E3666B1.1_cid364%3F__blob%3DpublicationFile%26amp%3Bv&referer=https%3A%2F%2Fadminprocedure.com.ua%2F&page=2