THE PRINCIPLE OF EX OFFICIO INVESTIGATION AND ITS SPECIFIC ROLE FOR ADMINISTRATIVE PROCEDURE

Abstract

The article deals with the principle of ex officio investigation in German, Polish and Ukrainian legal doctrine as well as its regulation in relevant general laws (codes) on administrative procedure. Taking into account the legal possibility of future judicial review of its decision, an authorized public administration entity cannot be guided in adopting an administrative act only by evidence presented to it by an individual and in which the circumstances favorable to it will objectively prevail. Indeed, if judicial or even administrative (in the procedure of administrative appeal) review reveals other factual circumstances, then the decision of the public administration entity is likely to be found unlawful. So the principle of ex officio investigation is to impose on the public administration the duty: to fully and comprehensively examine all the factual circumstances of the case, not just the evidence presented to it by the participants in the administrative procedure; even without the participants’ requests, on their own initiative, to require additional necessary and sufficient evidences for a complete and comprehensive research; based on the research of the evidence, to form own belief about the right decision and to make it (taking into account the relevant requirements of the participants, but not necessarily satisfying them). It is also noted in the article that participants in administrative proceedings have not only procedural rights (such as to be heard) but also duties. In particular, they are obliged to assist the public administration in investigating all the factual circumstances of the case. Failure to comply with this obligation may lead to decisions of the public administration entities that do not satisfy the requirements of the administrative procedure participants. The author is convinced that such a provision should be enshrined in the future Ukrainian law (code) on administrative procedure. The principle of ex officio investigation significantly differentiates the law of administrative procedure (and administrative process) from civil process (according to Ukrainian current legislation also - economic process). This principle limits the validity of well-known by most of lawyers adversarial and dispositive principles, which are also used in administrative procedural legislation, but to a much lesser extent.