15 December 2023 is a significant milestone for Ukraine as the Law “On Administrative Procedure” (the “Law”) takes effect, aligning Ukraine with the administrative standards of the EU and OECD countries. This comprehensive legislation aims to revolutionize administrative procedures, fostering transparency and predictability in interactions between citizens, businesses, and public authorities.
While the Law leads to transformative changes, its successful implementation requires careful planning. Initiatives include the training of public servants and the alignment of existing laws with the new administrative framework. These steps can be taken gradually without hindering the immediate effectiveness of the Law.
Scope of the Law
The Law covers various interactions, excluding areas such as constitutional, criminal, and judicial proceedings. It applies to inspections, penalties, and administrative services like business registration, real estate transactions, and issuance of permits.
Commencement and Timeline
Administrative proceedings kick off at a person's request (e.g., for rights protection or obtaining a service) or an administrative body's initiative (e.g., during inspections).
Proceedings begin upon receiving the application or initiating procedural actions. Unspecified case deadlines have default limits:
• Up to 30 days after receipt of the application.
• Up to 45 days in case of hearings.
The administrative authority can extend proceedings by 15 days with prior notice, provided that the notification is given no later than three business days before the deadline, in case of valid reasons.
The Law details grounds for leaving applications unconsidered, akin to court processes.
Procedure and Evidence
The administrative body autonomously gathers evidence for comprehensive case resolution. Participants may present arguments and evidence, but the burden of proof rests with the administrative body, which holds the authority to contact other entities for information. Information sources encompass participant explanations, documents, register data, automatic processing results, tangible items, witness statements, expert opinions, and specialist consultations. Premises and territories are subject to inspection.
Crucially, the administrative body cannot compel individuals to obtain documents unless mandated by law. Evidence must meet a few important criteria: it needs to be relevant, admissible, trustworthy, and sufficient to make a point.
Types of Administrative Procedures
In public administration, most cases are straightforward, especially in administrative services, where processes are standardized. Generally, approaches to resolving cases remain consistent under the Law, with four prioritized methods:
• Immediate Resolution: Swift handling of direct requests, such as registering births, deaths, and changes of residence.
• Automatic Mode: Involves automated processes, like state registration for an individual entrepreneur or changes to information. Furthermore, individuals can automatically declare their residence through the Diia Portal. Aside from the Diia Portal, various digital services make administrative tasks smoother with automatic features. Notably, the Taxpayer's Electronic Cabinet automates processes like document creation, acceptance, registration, and data processing. In urban development, the Construction E-System simplifies processes by automatically including notifications for construction activities, registering declarations of readiness, and recording changes.
• Written Proceedings: Conducted without hearings, relying on written materials submitted electronically, applicable for cases like issuing a passport or registering legal entities.
• Hearing with Participant(s): Hearings are advisable when parties have conflicting interests, requiring an impartial resolution.
An administrative act finalizes the resolution of administrative cases, following specific requirements outlined by the Law, including justification. It takes effect upon communication to the addressee unless mandated differently by law or the act.
Ukrainian legislation, inspired by European standards, emphasizes the right of an affected person to be informed promptly. To enhance transparency, administrative acts are communicated within a stipulated period, deemed communicated on the fifth day after dispatch unless received earlier. This provision guards against intentional avoidance, ensuring protection from arbitrary actions and safeguarding public interests, especially when someone tries to evade receiving an official document.
In cases of doubt or disputes, the burden of proof rests with the administrative body. Judicial practice assesses whether the administrative body fulfilled its duties, considering the chosen method of communication and the good faith of the affected person.
An administrative act becomes invalid through execution, expiration, withdrawal by the adopting body, annulment of an unlawful act, or cancellation via appeal or court decision.
Withdrawal or Invalidation of an Administrative Act
The Law introduces a groundbreaking authority for administrative bodies: the power to revoke or invalidate administrative acts.
In specific conditions, a lawful administrative act can be revoked, such as lifting restrictions on a person's entry into the territory of Ukraine or revoking an order prohibiting the activities of a specific business entity. While an unlawful one can be declared invalid if it has obvious defects, like being adopted by an unauthorized body, objectively impossible to implement, or lacking essential information about the adopting body.
These procedures, originating from the German Law on Administrative Procedure, serve as unconventional mechanisms supplementary to administrative appeal. They operate independently of judicial review, usually initiated by individuals when an appeal is not an option. An act may also be revoked at the initiative of an administrative body. These mechanisms benefit both private individuals and the state, rectifying errors and safeguarding public interests post-adoption.
Both an administrative act and specific procedural decisions, actions, or omissions by an administrative body can be contested by individuals whose rights are infringed. The appeal is reviewed by a higher-level administrative body unless otherwise specified by law.
Upon a complainant's request, filing a complaint suspends the effect of the contested administrative act. The appeal body, during consideration, may cancel the act, compel the issuance of a new act, adopt a new act, or require compensation for damages resulting from the unlawful administrative act.
Individuals always retain the option of judicial appeal/defense.
Execution of an Administrative Act
The binding nature of an administrative act grants the administrative body the power to determine the implementation procedure, including the option to defer execution. If the addressee fails to comply voluntarily, enforcement measures are taken, involving actions at the expense of the obligated party, imposition of a monetary penalty, and, as a last resort, direct influence.
The obligated person is informed about impending enforcement measures, including a timeframe for voluntary fulfillment, an estimate of costs for non-compliance, and details about potential enforcement measures.
A monetary penalty, defined by resolution, is accompanied by a new deadline for execution: EUR 30-225 for individuals and EUR 75-750 for legal entities, public associations, and individual entrepreneurs. The penalty may double if the act remains unexecuted within the new timeframe.
Direct influence, sparingly used, may involve physical force during actions like demolition or eviction. In certain situations, "direct intervention" might be the only option, such as when people ignore orders to leave a dangerous building, and physical force is necessary. The same applies if someone needs to be stopped at the border or a child has to be rescued from a dangerous situation in an apartment.
The implementation of the Law signifies a transformative step towards a more efficient, accountable, and citizen-friendly governance system. As Ukraine works towards full compliance and effective enforcement, these changes promise significant improvements in administrative practices and public service delivery.