EU Project “Pravo-Justice” and the Cassation Administrative Court within the Supreme Court discussed amendments to the Law on Administrative Procedure

On August 12, 2022, EU Project "Pravo-Justice" held a seminar for justices and staff members of the Cassation Administrative Court within the Supreme Court dedicated to the Law of Ukraine "On Administrative Procedure". The event attendees discussed key novelties of the law, their impact on jurisprudence, and also made some predictions as to potential challenges of its application.

In his welcome remarks, Mykhailo Smokovych, President of the Cassation Administrative Court within the Supreme Court, noted: “Today, the authorities have their laws so many of details and peculiarities, hence it is challenging for a person to figure them out. The Law on Administrative Procedure is aimed at generalizing this. I have no doubt that the law will give impetus to further development of administrative justice in Ukraine”.

“Adopting the Law on Administrative Procedure is a major achievement and a step forward. People rely on administrative bodies in various spheres of daily life, it has to do with their economic and social well-being. Therefore, it is important that with the adoption of the Law on Administrative Procedure there will be uniform rules and a uniform administrative procedure established to solve various issues arising for a person. This cuts ted tape, simplifies the procedure to get an administrative service, and provides guarantees for the interests of both business and people. It also reduces potential corruption risks”, emphasized Oksana Tsymbrivska, EU Project “Pravo-Justice” Deputy Team Leader. She also mentioned that for judges, the definition of discretionary powers set forth in the law is especially valuable, as well as the fact that reconciliation with the administrative body is provided for, which, until recently, used to be considered unrealistic.

The speakers who delivered their interventions were:

• Viktor Tymoshchuk, senior researcher at Koretskyi Institute of State and Law of the National Academy of Sciences of Ukraine, deputy chair of the Board of the Centre for Political and Legal Reforms, Ph.D. in Law, EU Project “Pravo-Justice” national expert.
• Jautrīte Briede, justice of the Supreme Court of the Republic of Latvia in administrative cases, professor of the Faculty of Law of the University of Latvia, EU4PAR expert, EU Project “Law-Justice” international expert, Dr. habil. in Law.

During the first part of the seminar, the trainers focused in detail on the subject-matter of the Law of Ukraine "On Administrative Procedure", where it belongs in legal system, its key definitions and principles.

In particular, this law governs the relations of executive authorities, authorities of the Autonomous Republic of Crimea, local self-government bodies, their officials, other subjects authorized by law to perform the functions of public administration with individuals and legal entities as to consideration and resolution of administrative cases through adopting and enforcing administrative acts.

Among the key novelties of the law, the following should be noted:

• There should be no decision not in favour of a person in his/her/its absence.
• Public administration's activity should be aimed at a positive result rather than on a quick decision, even if it will take more time.
• Public administration's decisions should be balanced, as much as possible, with the aim to minimize even potential conflicts between individual interests and public interests or the interests of various private individuals.
• The principle of formality, according to which the administrative body should play a leading role, clarify the materials contained in a case file, establish the necessary evidence for making an appropriate decision.

The trainers also noted the problems that the Law on Administrative Procedure should solve, in particular:

• No basic rights for a person in relations with public administration bodies guaranteed by European standards of administrative procedure (right to be heard; right to access to case materials; right to assistance and representation; obligation to motivate the decision; obligation to indicate terms and procedure of appeal).
• Dominance of state and departmental interests in regulation, including the fact that mainly by-laws are used to govern procedures.
• Different approaches in different acts/fields/systems for different authorities and no of uniform rules. Chaotic nature of legislation.
• The fact that many procedures are inefficient, in particular, administrative review; lack of regulation (early termination of the administrative act, enforcement, etc).*

"The Law on Administrative Procedure should unify different approaches for different administrative bodies so that both the investor and the average person can understand the legal field and what to expect in their relationship with the state," said Viktor Tymoshchuk, EU Project “Pravo-Justice” national expert.

In addition, the trainers presented the key provisions of the law regarding such issues:

• Administrative body. Participants in administrative proceedings and persons contributing to consideration of the case
• Initiation and preparation of an administrative case to be considered. Consideration and resolution of an administrative case.
• Administrative act. Validity and Termination. Administrative review.
• Enforcement of an administrative act. Revocation or invalidation of an administrative act.

For more details, see the presentation “Amendments to the Law of Ukraine "On Administrative Procedure”.

Adopting the Law on Administrative Procedure is a crucial step, but the journey only stats here. There is a lot of painstaking work ahead to harmonize other legal framework with the Law on Administrative Procedure. It is also necessary to provide high-quality and effective training for both civil servants and judges regarding the novelties set forth in the law.

Earlier, on July 27, 2022, the National School of Judges of Ukraine and the EU Project “Pravo-Justice” held the express seminar “The Law of Ukraine “On Administrative Procedure” and its impact on administrative proceedings” to familiarize judges of appellate and district administrative courts with the key amendments to the law.