- Slides: 35
Administrative procedure Definition, types, basic principles, administrative decision, first instance procedure, second instance procedure
Definition of administrative procedure Regulations on Administrative Procedure contain rules governing jurisdiction, the shape and course of actions in the procedure and shape and content of the acts are adopted as a result of the procedure by state organs, institutions and organizations that perform public authorizations. These are formal rules of behavior that differ from the material law
Types of administrative procedure n n n General Administrative Procedure - rules that are common to the treatment and the work of most government bodies, institutions and organizations that perform publicauthorizations Specific administrative procedures - rules governing competence, the form of actionsand acts only on specific organs and specific areas Lex specialis derogat lex generalis – subsidiary application of the Law on General Administrative Procedure
Principles of administrative procedure n 1. 2. 3. 4. 5. 6. 7. All general principles contained in the Law on General Administrative Procedure(LGAP) Legality Protection the rights of the parties and the protection of public interest Equality, impartiality and objectivity Service orientation Efficiency Material (substantive) truth Hearing of parties
Principles of administrative procedure 8. 9. 10. 11. 12. 13. 14. 15. Responsibility/Accountability Free evaluation of evidence Autonomy in resolving Two instance principle Finality and Validity Cost and urgency of the procedure Help the ignorant party Use of languages and alphabets
Legality General obligation for all and everyone in the adoption of legal acts and in taking tangible actions to comply with laws and regulations based on law.
Legality According to (LGAP) the principle of legality is expressed through three directions: 1. The bodies and organizations that act on administrative matters shall be settled based on law, international laws, regulations of state organs and general acts of bodies and adopted on the basis of public powers;
Legality According to (LGAP) the principle of legality is expressed through three directions: 2. When the body or organization decide on the basis of discretionary authority, i. e. a free evaluation, the decision must be made within the authority given by law and in accordance with the purpose for which it is given such (discretionary) authorization;
Legality According to (LGAP) the principle of legality is expressed through three directions: 3. All provisions of LGAP are valid and must be respected when the public body decides on a free evaluation or makes discretionary acts.
Protecting the rights of the parties and the protection of public interest The body that runs the procedure is obliged to take care to protect the rights of the party (so not to further degrade its position), but also to take care of public interest (therefore not unlawfully benefit the party to the detriment of public interest or damag e other participants in the proceedings).
Equality, impartiality and objectivity This is actually a reflection of the principle of prohibition of discrimination under the European Convention on Human Rights and Fundamental Freedoms. Addressing the administrative procedure must be performed without any differences and discrimination in relation to gender, race, skin color, language, religion, political or other opinion, national or social origin by birth or any other status.
Service orientation Administrative bodies and other competent authorities for administrati ve procedure when creating administrative-legal relations and make decisions, will have to do it with service orientation according to the new position of man and citizen in a democratic civil society and get rid of the present administrative-bureaucratic elements.
Efficiency Fast, efficient and quality resolution of administrative matters. At the same time other basic principles of administrative procedure should be taken into respect and i. e. the principle of efficiency mustn't produce damage to other concerned parties or public interest.
Material (substantive) trooth Determining the true state of affairs by establishing the factual situation as it exists in reality. Only through the legally relevant facts that the expertise and experience of the authorized officials, who have active and effective roles in the evidence procedure come to light.
Hearing of parties Before a decision is brought, the party must be given the opportunity to state their views on all relevant facts and circumstances. This principle provides an active role to the party in administrative proceedings.
Responsibility / Accountability This principle provides compensation to the parties caused by unlawful actions taken by the administration and by it refusing to resolve administrative matters.
Free evaluation of evidence The authorized officer in administrative proceedings is not bound by specific rules regarding which facts to consider when determining he facts, but it does based on his own personal understanding and conviction.
Autonomy in resolving Constitutional and administrative proce dural principle. The body that runs the procedure does it independently and makes decisions within the powers laid down by law, so long as it independently determines the facts and circumstances based on well established facts and circumstances.
Two instance principle Right of appeal - a constitutional principle laid down in LGAP. The Constitution stipulates that against all first instance acts of public administration is allowed an appeal or other legal remedy. First body decides, and the second instance controls the legality of first instance decisions.
Finality When used or missed a regular remedy in administrative procedure the decision becomes final. There remains the possibility to continue the proceedings on the occasion of an extraordinary remedy or in an administrative dispute.
Validity The final administrative acts can no longer be amended, repealed or annulled: formal and material validity.
Cost and urgency of the procedure The procedure is kept efficient and immediate, without delay, with less cost for the party and simply without losing time. Simultaneously, the authority that runs the procedure must completely determine the actual procedure, and material properly apply legal regulations.
Help the ignorant party The authority running the proceedings is consider any ”ignorance” of the party and make sure it does not prove detrimental to the rights that belong to the party, by implication of the parties’ procedural rights, or making suggestions regarding the material and legal regulations relevant to the parties rights.
Use of languages and alphabets The official language used in administrative procedure is the Macedonian language and it’s Cyrillic alphabet. In the areas where minorities compose at least 20% of citizens, administrative procedure can be carried out using their language and alphabet. Foreigners who do not speak the Macedonian language have the right to an interpreter.
Competence in administrative procedure Definition: The right and duty of the authority to decide certain administrative w ork over a certain territory: Types: n Formal or Actual (According to the nature of administrative work) n Functional (subspecies of actual competen ce, according to the function of the administrative agency) n Local (competence determined by territory)
Competence in administrative procedure n n Delegation - transfer of responsibility from higher to lower body Substitution (avocation) - Taking the responsibility of lower to higher Requisition - lower body leads the proceedings, and settlement is carried out by higher authority Clash of the competencies: positive and negative. Enabling immediate higher authority.
Party in administrative procedure A party in administrative proceedings is a person upon whose request the procedure initiated (the active party) or a person against whom proceedings are carried out (passive party), or a person to protect their rights or legal interests entitled to participate in the proceedings.
Legal capacity of a party in A. P. Party capability (bearer of rights and obligations) n Process capability (independently pursue procedural actions) n Party legitimacy (right and interest in the present case) n
Communication between administrative bodies and citizens n n n Submissions / forms - written and verbal announcements to individuals who are communicating with administrative authorities Records / Minutes - a public document that serves as evidence of the procedural actions taken and statements given during the procedure Delivery: direct, by mail, by publication in daily newspapers
First instance administrative procedure n n Initiation: ex officio or upon request by the party Interrogative procedure: short (not all procedural actions are taken) and specific (hearings, evidence exploration, data collection and documents. . . )
Litigation Means of proof: 1. Statement of party 2. Public documents 3. Witness 4. Expert forensics 5. Insight
Decision Definition: a specific administrative act which decides on the rights, obligations and legal interests of legal entities adopted in administrative proceedings. Elements: an introduction, disposition (statement), rationale, legal instruction (number, date, signature of an official, sealed) Types: Partial, further, temporary, written and oral
Regular remedies n Appeal Definition: regular legal means to protect the rights of citizens injured by an act of first instance administrative authority Properties: devolutionary application (on appeal resolved immediate higher authority); suspensive effect (appeal suspends the execution of the decision) Principles: reformatio in meius and reformatio in peius General Deadline: 15 days
Extraordinary remedies n n n n Recovery of Administrative Procedure Changing and repealing Decision concerni ng an administrative dispute Extraordinary repealing Decision Amendment / Repeal of decision with the consent or at the request of a party Announcing the decision to void Annulment of decision on the right of supervision Request for protection of legality
Execution of Decision constitutes compliance with the legal facts. Types: voluntary and involuntary, administrative and judicial; enforcement of monetary claims and nonmonetary liabilities