Code Of Administrative Procedure Research Articles

Access to administrative justice in martial law

The article defines the legal mechanism of access to justice in martial law. The first part analyzes the problems with access to justice related to the introduction of martial law. The second part deals with the use of electronic means to ensure access to administrative justice. The third part reveals the role of administrative justice in ensuring human rights and freedoms in martial law. It is concluded that with the introduction of martial law the right to judicial protection cannot be limited, and the state has a positive obligation to provide the widest possible access to justice, in particular through electronic document management and video conferencing with the authorization of participants with an electronic signature. The introduction of elements of e-government better ensures the activities of administrative jurisdiction, because with the proper authorization of the participants in the process, allows for a court hearing by videoconference. Also, the improvement of access to administrative proceedings is facilitated by the provision of electronic document management, in particular the execution of case materials in electronic format, which is allowed by the current Code of Administrative Procedure of Ukraine. Analysis of the peculiarities of administrative courts in martial law shows that administrative proceedings are possible by videoconference, the participation of judges remotely in court is carried out in exceptional cases where there are real and insurmountable obstacles to access to the workplace. Under martial law, it is possible to move a court to another location in connection with hostilities or the temporary occupation of the territory in order to ensure the continuity of justice, including the security of judges.

Glossary to the decision of the Supreme Administrative Court of November 21, 2018, file ref. act I OSK 3897/18, Lex nr 2580594

The subject of the gloss is a legal analysis of general proceedings before the Commission for the reprivatisation of Warsaw real estate as regards the right of access to the case file. The Law on the Commission contains special regulations, different from the Code of Administrative Procedure, which result, among other things, from the position of the Commission and the subject of its activity. The author uses a legal and analytical research method, based on the literature and administrative court decisions.

COMMENTARY TO THE JUDGMENT OF THE SUPREME ADMINISTRATIVE COURT OF 8 FEBRUARY, 2022 – COMMENTS IN THE CONTEXT OF ART. 10 KPA

In the commented judgment, the Supreme Administrative Court expressed view on the obligations of the authority conducting administrative proceedings under Art. 10 § 1 of the Code of Civil Procedure (the principle of active participation of a party in the proceedings and the principle of hearing the parties). Against the background of the position of the Supreme Administrative Court, the authors indicate the necessity to treat Art. 10 § 1 of the Code of Administrative Procedure, as two duties of an authority, one of which should be performed in the course of administrative proceedings (on a continuous basis), and the other - at least once in a specific phase of the pending proceedings. The authors also indicate the negative effects of the excessive fulfillment of the obligation contained in Art. 10 § 1 in fine of the Code of Administrative Procedure.

Admissibility of Revocation by a Party of Their Declaration to Waive the Right to Appeal

The Code of Administrative Procedure was substantially amended in 2017. Introduction of the right to waive the right to appeal to Article 127a, Code of Administrative Procedure, is one such major change. Such a waiver is momentous, since it not only obstructs appealing but also prevents the option of complaining against a decision to courts. The new regulation, intended to accelerate administrative proceedings and enforceability of decisions, gives rise to serious doubts, chiefly concerning a party’s option of withdrawing their declaration to waive the right to appeal. In spite of the legislator’s intention signalled in the substantiation of the amendment, both judicial decisions and the doctrine rightly accept the possibility of withdrawing a declaration to waive the right to appeal until the last day of the term for appeals.

Appointing and Dismissing a District Commandant of the State Fire Service in Poland

The article is the first, original and only scientific study of the issue of appointing and dismissing district commandants of the State Fire Service in Poland. Thus it fills a gap in the science of law, which can be a reference point for judicial decisions. The article deals with such issues as the administrative nature of the appointment and dismissal, the prerequisites for the appointment and dismissal of the commandant and their proof, the procedure for the appointment and dismissal and the participation in them of the organs of the State Fire Service and the organs of public administration, the importance of the starost’s opinion in these procedures, the importance of the loss of confidence in the appointment and dismissal of the commandant. The issue of the application of the Code of Administrative Procedure raised in the article plays an important role in these procedures. The article is based on the current legal status, exhaustively analyzed and applied judicial decisions and views of the science of law. The paper also refers to the views occurring in the procedures for appointing and dismissing commandants in other uniformed services.

Възникване и развитие на извънредните средства за преразглеждане на административни актове и влезли в сила съдебни решения по административни дела

This report aims to present the emergence and historical development of the extraordinary procedure for revision of administrative acts and enforceable court rulings on administrative cases. It focuses on the origins of the resumption in modern Bulgarian law, dating back to the early 20th century, as well as on its evolution through the administrative procedure acts of 1912, 1934, 1970 and 1979 to the eventual adoption of the Code of Administrative Procedure which is currently in effect.

Procedural Features of Consideration of Cases on Challenging Decisions, Actions (Inaction) of Draft Boards and Bodies of the Military Commissariat

The allocation of cases on challenging decisions, actions (inaction) of draft boards and military commissariat bodies from the total mass of administrative cases arising from public legal relations and considered in accordance with Chapter 22 of the Code of Administrative Procedure of the Russian Federation is due to the specifics of the rights and obligations of citizens in connection with the implementation of measures for military service on conscription, legal consequences associated with non-military service on conscription, in particular, with restrictions on the passage of state civil service, filling positions in law enforcement agencies, working in the judicial system, as well as in connection with the peculiarities of regulatory legal regulation in the field of legal relations under consideration. Such specifics of the regulatory framework, subject composition, time limits, nature and content of this category of administrative cases entail procedural features of their consideration, which courts should take into account in their practical activities. The purpose of this article is to offer practical recommendations to the courts on the consideration of cases on challenging decisions, actions (inaction) of draft boards and bodies of the military commissariat. The achievement of this research goal led to the formulation and solution of the following tasks: to specify the subject composition, to identify the features of proof, the application of procedural deadlines, to determine the permissible measures of preliminary protection, to reveal the features of the content of the court decision in cases of challenging decisions, actions (inaction) of draft boards and military commissariat bodies. The methodological basis of the study was the dialectical method of scientific knowledge, analysis, comparison and generalization of the judicial administrative cases challenging the decisions, actions (inaction) of draft boards and bodies of the military Commissariat handled in the courts for the period 2017– 2020. The authors propose procedural and legal algorithms for resolving some issues related to the consideration of cases on the protection of citizens’ rights in the implementation of conscription measures.

Analysis of mechanisms for appealing against decisions, actions or inactions related to the electoral process in Ukraine

The article examines of mechanism for appealing against decisions, actions or inactions related to the election process. It is stated that in the election process there are inevitable disputes that need to be resolved quickly, as the election process is a temporary and fleeting phenomenon. The Electoral Code of Ukraine guarantees the right to appeal against decisions, actions or inactions concerning the election process to a court or election commissions. Ukrainian legislation provides judicial and administrative procedures for resolving election disputes, which differ in the range of entities that have the right to appeal, the subject of appeal, the procedure for reviewing applications, the legal consequences of decisions.
 It was emphasized that the judicial procedure of resolving election disputes is a priority in comparison with the consideration of these disputes by election commissions. A comparative analysis of the Electoral Code of Ukraine and the Code of Administrative Procedure of Ukraine of the subject of judicial appeal, which allowed to trace the numerous problems associated with the use of certain terms and structures, which requires changes in these regulations to harmonize them, which will positively affect the mechanism of protection of the rights and legitimate interests of the subjects of the election process.
 It is noted that not only courts and election commissions are the subjects of resolving election disputes. Such entities include the State Register of Voters and law enforcement agencies. The legal status of the prosecutor in the administrative court process as a subject of protection of citizens' voting rights has been studied.
 Attention is drawn to the fact that accurate and strict observance by administrative courts of the Code of Administrative Procedure of Ukraine during the consideration of disputes concerning legal relations related to the electoral process is a prerequisite for ensuring their proper and prompt resolution to protect the rights, freedoms and interests of voters and others. subjects of the election process.

Principles of Administrative Procedure and Proceedings in Kazakhstan against the Background of Foreign Experience

The study purpose is to analyze the principles of administrative procedure and proceedings established in the Administrative Procedural Code of the Republic of Kazakhstan, as well as to identify recommendations for their improvement in legislation and in law enforcement practice. The concept and principles of administrative procedure and proceedings are analyzed, and deficiencies in the legal regulation of administrative procedure and proceedings principles are revealed. The study proceeds from the assumption that the existing set of principles of administrative procedure in the Republic of Kazakhstan, set out in the new Administrative Procedure and Processual Code of the Republic of Kazakhstan, limit the possibilities for protecting the rights of citizens in the administrative and procedural order. Being limited to the existing set, they significantly narrow the possibilities for improving administrative and legal norms in the future. Based on the review of specialized foreign legislative regulation in the field of administrative procedure, the study gives grounds to say that when developing a new act, the Kazakh legislator did not use positive foreign experience. The experience of Kazakhstan can be used in other countries that are faced with the need to reform or develop administrative procedural regulations.

Правове регулювання відновлення експлуатації об’єктів після усунення порушень вимог законодавства у сфері техногенної та пожежної безпеки

The article examines the ways of legal regulation of the renovation of facilities operation after the violations elimination of legislative requirements in the field of technogenic and fire safety. It is noted that with the wording of the Code of Administrative Procedure of Ukraine in the new version, the court procedure for renovation of operation of such facilities was abolished, while the legislator did not propose another mechanism for resumption. It is stated that in conditions of legal uncertainty, the controlled subjects exercise their right to resume operation of facilities on the basis of Part 5 of Art. 4 of the Law of Ukraine “On the Fundamental Principles of State Supervision (Control) in the Field of Economic Activity”, which states that the renovation of production (manufacture) or sale of products, works, services by business entities after suspension is possible from the moment when state supervision (control) body take notification of the business entity to eliminate all violations established by the court. In practice, the resumption of work is as follows: the controlled subjects take measures to eliminate violations, then apply to the supervisory authority with a request to conduct an unscheduled inspection of such entities, and in case of confirmation of elimination of violations, resume full-fledged work. However, this rule does not fully meet the needs of legal regulation of the relationships. Key words: administrative procedure of renovation of work (operation), renovation of work of the stopped objects, renovation of operation of objects, application of response measures, cancellation of response measures.

Administrative mediation in the light of institutional transformations in Ukraine

The article highlights the social significance of administrative mediation, which consists in the organization and development of civil society institutions (for example, public associations of mediators), including their public control over public administration as a system of bodies and organizations designed to implement goals and objectives given by the political (representative) power of the state. With the help of administrative mediation, society can legally «signal» to the representative authorities about certain problems in public relations (for example, on the basis of depersonalized statistical information and reports provided by associations of mediators), eliminate and find compromise in overcoming shortcomings of public administration together with the government and, finally, to move the process of modernization of the executive branch towards finding consensus at all levels of interaction between the state and society. The article proposes the author’s definition of «administrative mediation» as an extra- judicial legal form of voluntary settlement of an administrative dispute involving two or more parties, one of which is a subject of power, and a professional mediator arising from a violation of administrative law. The article presents a number of special features and characteristics of administrative mediation, which, unlike other types of mediation, require the application of specific institutions. For instance: inequality of the parties, the dispute is based on the public interest; the principles of confidentiality and voluntariness are relative; complex structure of the mediator’s financial reward; requires the involvement of independent experts; special requirements for the mediator. The article proposes the criteria according to which an administrative dispute can or cannot be resolved through the procedure of administrative mediation. The article proposes a number of legislative initiatives regarding the institutionalization and development of the institution of administrative mediation in Ukraine. Among them, it is proposed to introduce a special section in the Code of Administrative Procedure of Ukraine «Mediation» (as was done in Poland), where, among other things, clearly define the restrictive framework (criteria) for administrative disputes, according to which the procedure of administrative mediation can be applied.

Рассмотрение судами административных дел о признании информации, размещенной в сети Интернет, информацией, распространение которой в Российской Федерации запрещено

The article is dedicated to consideration of some challenging issues concerning the procedure for the review of administrative cases on the acknowledgment of information published in information and telecommunication networks including on the Internet as information prohibited for distribution in the Russian Federation and the need for specification and clarification of some provisions of Chapter 27.1 of the Administrative Procedure Code of the Russian Federation.

Administrative procedural legal capacity and capacity of foreigners and stateless persons: concept and essence

Participants in the administrative process are its participants. However, in order to be a subject of administrative proceedings, its participants must have administrative procedural capacity and legal capacity, while the legal status and procedural status of foreigners and stateless persons, the scope and content of functions and tasks of these persons may differ significantly from other participants in administrative proceedings. Given that administrative procedural capacity and legal capacity are the most important features of the administrative process, this controversial category still attracts the attention of scholars. In accordance with the provisions of Art. 26 of the Constitution of Ukraine, foreigners and stateless persons legally staying in Ukraine enjoy the same rights and freedoms, as well as bear the same obligations as citizens of Ukraine – except as provided by the Constitution, laws or international treaties of Ukraine. This provision is generally consistent with Art. 2 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948, according to which everyone should have all the rights and freedoms proclaimed by this Declaration.Since the right to go to court is regulated by the Constitution, laws of Ukraine, as well as international acts, the above provides legal guarantees of legal capacity. In order for a foreigner and a stateless person to be a subject of an administrative proceeding, he or she must have legal capacity. A characteristic feature of administrative procedural capacity is that it has not only rights but also responsibilities.The legal basis for the emergence of administrative procedural legal relations is the administrative procedural capacity and legal capacity of foreigners, stateless persons as participants in court proceedings. This issue is regulated by Chapter 4. «Participants in the trial» of the Code of Administrative Procedure of Ukraine, and Art. 44 of the Code defines the procedural rights and obligations of the participants in the administrative case.

Characteristics of review of economic affairs in the appeal procedure

The right to go to court for judicial protection is an institution of procedural law that regulates the grounds and procedure for violation of judicial activity to protect rights, freedoms and interests.
 The legislator divided those who have the right to go to court into those who seek protection of their rights, freedoms and interests, and those who go to court to protect the interests of the state, public interests and the rights, freedoms and interests of others.
 In recent years, Ukraine has improved procedural legislation, including economic procedural. Law of Ukraine "On Amendments to the Commercial Procedural Code of Ukraine, Civil Procedure Code of Ukraine, Code of Administrative Procedure of Ukraine and other legislative acts of 03.10.2017 № 2147-VIII, Commercial Procedural Code of Ukraine is set out in a new version, which entered into force on December 15, 2017 As a result of this legislative activity, new institutions of the economic process appeared and those that existed before were improved. The institute of appeals has also been significantly updated, as the procedure for filing appeals and cassation appeals has been changed, the deadline for appeals has been extended, changes have been made to the list of decisions of the court of first instance that can be appealed separately. The mechanism of legal regulation of appeals against decisions of the court of first instance in the economic process is based on the decision of the commercial court of first instance. 
 In this scientific work the peculiarities of reviewing economic cases on appeal are investigated, the legal analysis of appellate proceedings is carried out. An analysis of decisions that can be appealed separately from the court decision. The signs of appellate proceedings are characterized, the peculiarities of appealing the case to the court of appellate instance are determined, the concepts of appellate, appellate proceedings and appellate stage are formulated.

What should an administrative code and an administrative procedure code contain?

The administrative code of the Republic of Moldova was approved by the Parliament on July 19, 2018 (entered into force on April 1, 2019). One year later, on July 3, 2019, by the Government Emergency Ordinance, no. 57/2019, the Administrative Code of Romania was approved, which entered into force on the date of publication in the Official Gazette of Romania. However, the Administrative Codes of Romania and the Republic of Moldova, although with identical titles, have a different content or object of regulation and are different in their structure. The opinions on administrative codification set out in the Romanian and Moldovan literature are examined in this article. In particular, the issue of the content (object of regulation) of the Administrative Code and the Code of Administrative Procedure is investigated. The article also addresses issues such as the issue of Code priority, the issue of distinguishing between substantial administrative law and the law of administrative procedure. In the author’s opinion, in the administrative field, the object and perimeter of a code can be established starting from the determination of the difference between the material / substantial administrative law and the law of the administrative procedure

POLISH MODEL OF ADMINISTRATIVE PROCEDURE

In the article, the author examines the Polish model of administrative procedure, its nature, structure, taking as a basis the work of Javier Barnes in which the scientist identifies three generations of administrative procedure with the elements: (1) procedure for adjudication, (2) rule-making procedure, (3) collaborative – making public policy and implementing procedure.) The model of administrative procedure in Poland is normative as it is enshrined in the Code of Administrative Procedure. After analyzing its provisions, the author came to the conclusion that the Polish model of administrative procedure has a pronounced jurisdictional character, which is indicated by the principles of administrative proceedings, the structure of administrative proceedings. The jurisdictional model of administrative procedure in Poland remains dominant; it is characterized by a clear polarization of roles, with a "powerful sovereign" on the one hand and a subordinate citizen on the other. However, the Code reflects the provisions that indicate the partial appearance in the classical model of the administrative procedure of the elements of the third generation, which is associated with convergence and globalization. Poland's membership in the European Union prompted the legislator to introduce new, additional provisions in the Code of Administrative Procedure, concerning, for example, Administrative European Cooperation Section 8a, the principle of the peaceful settlement of Art. 13, the use of mediation in administrative proceedings Art. 96a. The presence of these elements is aimed at overcoming this division, creating a relationship between the parties, according to the principle of horizontal communication. The nature of the jurisdictional model of the administrative procedure is changing towards the regulation of a wide range of activities of bodies in the public sphere. Establishing a permanent system of communication between bodies, and between bodies and citizens "becomes the goal of the administrative procedure. Such changes are in line with the requirements of European Union legislation and the principles enshrined in the Code of Administrative Procedure.

Grounds for reconciliation of the parties in the administrative proceedings of Ukraine

The article is devoted to the study of the grounds for reconciliation of the parties in the administrative proceedings of Ukraine.
 It is noted that under the grounds of reconciliation in the administrative proceedings of Ukraine it is advisable to understand a set of mandatory circumstances of the actual reality, the combined presence of which allows to resolve a public law dispute through reconciliation.
 It is indicated that in the administrative proceedings of Ukraine there are three groups of grounds for reconciliation of the parties:
 – normative – is a system of norms of the current legislation, which regulates various aspects of reconciliation of the parties to a public law dispute;
 – actual – the implementation by the parties of a public-law dispute of actions to exercise the right to conciliation on their own initiative or on the basis of a court initiative.
 – procedural – these are documents drawn up (submitted, approved, validated) by the parties to a public dispute or by a judge, enabling reconciliation, as a procedure and/or as a desired result of this procedure.
 It is emphasized that in addition to the Code of Administrative Procedure of Ukraine as a normative basis for reconciliation should be considered:
 1) norms of the Constitution of Ukraine;
 2) acts of international law containing standards of human rights, good governance and justice.
 3) special legislative acts and by-laws that contain provisions that determine the powers of public service bodies that appear as a party to a public law dispute.
 It is emphasized that the procedural grounds for reconciliation in the administrative proceedings of Ukraine include:
 1) a petition on the basis of which the court suspends the proceedings in the case for the period of reconciliation. The relevant petition testifies the fact that the parties of the public law dispute reached an agreement on an attempt to reconcile.
 2) a statement of reconciliation;
 3) a decision approving the terms of reconciliation, which takes place when there are all the conditions (absence of negative conditions), as well as factual and regulatory grounds, after which the proceedings are closed and the parties consider that they have reconciled.

Situation of scientific research in the sphere of electronic mapping in criminal proceedings

Considering everything, the accusation of a person is formed due to the available evidence in criminal proceedings, the scientific article pays attention to a new source of evidence - evidence that exists in electronic form.
 It is noted that today scientists call and define the evidence that exists in electronic form in different ways.
 The purpose of the article is to highlight the situation of scientific research in the sphere of electronic mapping in criminal proceedings, which will contribute to the further development of theoretical and practical aspects of the use of evidence that exists in electronic form.
 It draws our attention to the fact that the Commercial Procedural Code of Ukraine, the Code of Administrative Procedure of Ukraine, the Civil Procedure Code of Ukraine enshrine the concept of "electronic evidence" as a separate type of evidence on a par with material and written (documentary). However, there is no such evidence in the Criminal Procedure Code of Ukraine.
 In order to comprehensively cover the state of scientific research on this topic, the author, taking into account the most indicative positions of scientists, was divided into certain blocks by the names of evidence that exist in electronic form: electronic evidence; digital evidence (digital (electronic) evidence); electronic traces (electronic digital footprints, virtual footprints); electronic mapping.
 It is noted that it is inexpedient to enshrine the concept of "electronic footprints" in the Criminal Procedure Code of Ukraine, which will denote evidence that exists in electronic form.
 It is summarized that certain concepts of scientists regarding the name of the category of evidence that exist in electronic form, mainly have common features: "factual data or information system presented in digital (discrete) form or information network and recorded on any type of media" . However, the names of this category of evidence differ significantly, depending on the creative approach of the authors and the definition of certain distinctive features in the concepts of such types of evidence.
 The position of the authors on the title of such evidence "electronic mapping" and the introduction of appropriate amendments to the Criminal Procedure Code of Ukraine is supported.

The Simplification of Procedures in Portuguese Administrative Law

The present paper intends to provide an overview and a critical assessment of the administrative simplification policies implemented in Portugal over the past 20+ years. Throughout these decades, the major instruments for administrative simplification have been: (i) Decree-Law n. 135/99, of 22 April; (ii) the Simplex programme; (iii) the 2015 new Code of Administrative Procedure and its 2021 amendment; and (iv) the COVID-19 legislation. Although Decree-Law n. 135/99 (i) was the first attempt to specifically address simplification, it was a very thin one. The Simplex programme (ii), created in 2006, was the first cross-sectoral robust policy of simplification; its motto is “the simpler the better” and it encompassed reforms in all government areas aiming at cutting red tape, promoting administrative efficiency, and making the citizens’ and the corporations’ lives easier when dealing with State. The new Code of Administrative Procedure (iii), approved in 2015, brought about specific normative solutions to simplify procedures, namely, prior communications, administrative assistance, procedural conferences, and the electronic one-stop shop. Finally, the COVID-19 legislation (iv) was made necessary by the COVID-19 pandemic and by the fact that public health restrictions made it impossible for citizens to establish personal contact with the administration in many cases.

ЗАХИСТ ПРАВ ІНОЗЕМЦІВ ТА ОСІБ БЕЗ ГРОМАДЯНСТВА СУДАМИ УКРАЇНИ

The article emphasizes that the basis on which the legal regulation of the protection of the rights of foreigners and stateless persons and their legitimate interests was formed, according to which such rights and interests require legal regulation, are the constitutional foundations of the legal order and international legislation. It is noted that the majority of constitutional norms have an absolute character, that is, they are not only inalienable, but also not subject to limitation. Methods and procedural forms of protection of the rights of foreigners and stateless persons by domestic courts are disclosed. For this purpose, the provisions of the Convention on the Protection of Human Rights and Fundamental Freedoms, the norms of the Law of Ukraine «On the Judiciary and the Status of Judges», provisions of the Civil Code, Civil Procedure Code, Code of Administrative Procedure, Economic Procedure Codes of Ukraine, judicial practice and doctrinal opinions were analyzed. Taking into account the legal status of foreigners and stateless persons, attention is drawn to the peculiarities of proceedings in administrative lawsuits regarding the detention of foreigners and stateless persons. It was determined that the methods of protection of the rights of foreigners and stateless persons are regulated by the norms of various branches of law, which regulate specific legal relations involving the specified category of persons, within which everyone is guaranteed the right to judicial protection of his rights and freedoms.