Law on Administrative Procedure = customer orientation of officials
We would like to inform you that on June 15, 2022, the Law of Ukraine “On Administrative Procedure” (hereinafter referred to as the Law), adopted by the Verkhovna Rada on February 17, 2022, was officially published.
The new Law reforms the performance of administrative functions by executive authorities and local self-government bodies (hereinafter collectively referred to as the authority):
– for the provision of administrative services (provided both directly by the authorities, and through the Administrative Services Center or DIIA), that is the functions of issuing permits and other documents at the request of individuals and legal entities;
– other functions, the result of which is the adoption of a decision aimed at acquiring, changing, terminating or exercising the rights and / or obligations of a person (issuing orders and sanctions based on the results of inspections, considering complaints from persons, etc.)1.
In general, the Law, as a single unified act, describes as fully and in detail all the procedures that arise when the authorities perform the above administrative functions: from the procedure and terms for notifying a person about the consideration of his issue by the authority, ending with the procedure for implementing the decision taken by the authority.
At the same time, it should be taken into account that today each authority has its own procedures for the performance of administrative functions, approved at the level of the Cabinet of Ministers, a ministry or other executive authority. The purpose of the new Law is precisely to bring them into uniformity, to establish uniform standards, rules and procedures that will regulate the administrative activities of most government bodies.
Just as with the adoption of the Law “On the Basic Principles of State Supervision (Control) in the Sphere of Economic Activity”, which gave rise to the introduction of uniform standards for the procedures for conducting inspections of many authorities, the new Law should be implemented at the level of by-laws of individual authorities, which regulate the provision of administrative services, the implementation of measures after the completion of inspections (imposing sanctions, appealing the results), etc.
Given the need to amend a large number of documents that today regulate the administrative procedures of various authorities, most of the provisions of the new Law will come into force only after a year and a half – on 15.12.2023. Without the implementation of its provisions in practice, conflicts will arise over contradictions between the new Law and the procedures existing before its adoption.
Thus, the new Law today already obliges the Cabinet of Ministers to appoint measures to renewal the regulatory framework in accordance with its provisions, which starts an administrative reform, which has the aim of unification of administrative procedures like in European countries, to adjust the client focus, transparency and predictability of the authorities’ activities.
According to the above, we would like to consider the main provisions of the Law, which are the impetus for further reform, that should be completed before the end of 2023.
1. Stability and predictability of decisions made
Thus, the new Law contains provisions that ensure the unification and uniformity of approaches and decisions taken by the authorities in similar issues and legal relations:
– when changing the assessment and conclusions in the same or similar cases, the authority is obliged to provide an appropriate justification for such a change;
– the conclusions on the application of the rules of law, set out in the decisions of the Supreme Court, are binding on all authorities.
The above rules should limit the arbitrariness and subjective approach in decision-making by the authorities.
2. Presumption of legality of actions and claims of a person
The new Law establishes the following presumptions in favor of business:
– the actions and demands of the person are lawful until the other is proved during the consideration and / or decision of the case;
– doubts about the legitimacy of actions and claims of a person arising from an ambiguous (multiple) interpretation of a rule of law should be interpreted by the authority in favor of their legitimacy.
3. Obtaining the necessary documents by the authority itself
The Law establishes the obligations of the authority to independently collect the documents necessary for its decision-making:
– an authority may not require a person to provide documents and information that is in his possession or in the possession of another authority, enterprise, institution or organization related to the sphere of his management;
– the authority cannot oblige a person to independently obtain documents, if such an obligation is not defined by law;
– the authority should not involve a person in requesting documents and information, obtaining approvals and conclusions necessary to resolve the case.
The above norms limit the authorities in approving by-law procedures that make the solution of the issue dependent on the activities of one or more authorities, from which a certificate, approval, etc. should be obtained.
4. Single general term for consideration of the issue
The new Law establishes a single general deadline for the implementation of all administrative procedures at the request of a person within a reasonable time, but not more than thirty calendar days after the receipt of the application (except when a different deadline for resolving a separate issue is determined by law).
We would like to note that there is a similar general thirty-day period for consideration of applications provided for by the Law “On Citizens’ Appeals”, which, by analogy, applies not only to individuals, but also to legal entities. And from the moment the new Law comes into force, the provisions of the Law “On Citizens’ Appeals” will no longer apply to administrative procedures.
5. Direct participation of a person in the consideration of his issue
The new Law establishes unified unified procedures that allow a person to know about the consideration of his issue, to be able to give explanations, etc.:
– a person has the right to be heard by providing an explanation and / or objection in the course of a decision taken by an authority that may adversely affect the rights, freedoms or legitimate interest of a person;
– the invitation of a participant in the consideration of the case is carried out no later than seven calendar days before the day of the corresponding procedural action, etc.
Thus, at the level of law, the terms and procedure for considering issues, as well as the rules for participation in administrative procedures of individuals, are fixed.
6. Independent choice of the body of appeal by a person
The Law also establishes the right to choose a body with the necessary competence, regardless of the place of residence and location of the applicant, unless otherwise provided by law and except for issues related to real estate, which are considered at its location.
7. Procedure for leaving the application without movement
The Law eliminates the possibility of refusal of the authority to consider the application on formal grounds:
– if the application is submitted in violation of the requirements, the applicant is sent a message about leaving it without movement with a list of identified shortcomings within three working days from the date of receipt of the application, and in the case of personal application with the application – immediately (if possible) against receipt;
– in the event that the applicant eliminates the shortcomings within the period established by the authority, the application is considered submitted on the day of its initial submission;
– it is not allowed to re-leave the application without movement, in which the identified shortcomings indicated in the message about leaving the application without movement are eliminated;
– if the solution of the issues raised in the application is not within the competence of the relevant authority, it immediately sends it to another authority, of which the applicant is notified in writing.
Summing up the above, the Law contains progressive norms aimed at ensuring the transparency of the activities of the authorities and the adoption of uniform decisions by them within a clearly defined procedure.
Let’s hope for the speedy bringing of regulatory acts in the field of administrative activity in line with the requirements of the Law and the strict implementation of its provisions by all officials at all levels.
1 The new Law does not apply to criminal, judicial and enforcement proceedings, operational-search activities, notarial acts, execution of sentences, application of legislation on national security and defense, citizenship, asylum in Ukraine, protection of economic competition (except for cases on granting permits and conclusions on concerted actions, concentration of economic entities).