This is not the first time that draft law No. 3475 “On the Administrative Procedure” will be included in the agenda of the Verkhovna Rada of Ukraine in the second reading.
At the same time, this summer, the Cabinet of Ministers of Ukraine, in cooperation with European experts of the program to support the improvement of governance and management (SIGMA program), adopted an order dated 21.07.2021 No. 831-r “Some issues of public administration reform in Ukraine,” which approved the strategy of such reform. The government also approved a specific action plan, the fundamental point of which being the formation of a convenient administrative procedure for citizens and businesses.
What exactly does the legislator propose in the draft law of Ukraine No. 3475 “On Administrative Procedure,” and does Ukraine need it now? Let’s look at our legal analysis.
What do we have now?
Today, the legislative regulation of interaction between citizens and legal entities with authorities and local self-government bodies (public administration bodies) is scattered among dozens of separate regulatory legal acts. Such scatteration often blocks a person’s ability to respond to administrative decisions or administrative actions taken against them. For example, when applying to the competent authorities for a license, construction permit, pension provision, or any other issue, individuals are left without explanation due to the complexity of the procedures for making such decisions.
Imperfect legislative regulation also leads to the lack of an effective procedure for reviewing (canceling or revoking) administrative decisions, reduces the level of confidence in the mechanism of administrative (pre-trial) appeals, and causes a lack of tools for enforcement of administrative decisions.
As a result, there are frequent abuses on the part of state bodies — citizens and legal entities actually have no choice but to pay bribes to solve their administrative issues.
What is proposed?
An administrative procedure is a set of formal rules that regulate the process of making managerial decisions by authorized bodies. Compliance with the requirements helps to establish the legality of the actions of such bodies, their objectivity, and fairness.
Thus, the draft law establishes the fundamental legal basis for the exercise of public administration bodies’ powers, regulates the stages of administrative proceedings, and also introduces simplified, clear, and unified rules for interaction of public administration bodies with citizens and businesses.
In particular, the draft law “On Administrative Procedure” envisages:
- the right of a person to be heard before adopting a negative administrative act regarding them;
- introduction of the category of “stakeholders” in the administrative procedure and mechanisms for protecting the rights and legitimate interests of such persons;
- features of administrative proceedings in cases involving many persons;
- the obligation of administrative bodies to justify their acts and indicate the procedure for contesting them;
- simpler rules regarding “representation” in administrative proceedings (in particular, without a notarized power of attorney from a representative);
- rules concerning the impartiality of administrative officials and the procedure for their recusal;
- the rule on the entry into force of an administrative act from the moment it is brought to the attention of a person(s) and determining the procedure for bringing such an act to the person’s attention;
- rules for revoking (invalidating) an administrative act and regulating the enforcement of administrative acts.
The draft law “On Administrative Procedure” also establishes a new transparent and inclusive mechanism for issuing and contesting decisions of public administration bodies, which will facilitate the resolution of public law disputes out of court. This is about the duties of administrative bodies provided for in the draft law about the proper notification of persons on decisions made regarding their rights, freedoms, and interests, justification of such decisions, as well as providing the persons with access to the materials of their case.
Currently, due to the congestion of administrative courts, cases on contesting decisions of public administration bodies are considered for years, and therefore judicial protection of complainants’ rights cannot be considered effective. However, it is worth noting that the draft law does not cancel the right of a citizen to immediately apply to the court to contest the decisions of the public administration.
In addition, the draft law “On Administrative Procedure” will also have a certain anti-corruption effect because it will introduce general transparency of the administrative procedure, universality of rules, healthy interdepartmental interaction, and so on. This will significantly reduce the corruption risks that currently exist in the field of public administration due to the lack of unified legislative regulation.
Thus, the draft law does not contain provisions aimed at regulating the essence of specific public law relations, as well as the procedural regulation of certain areas of public administration. This document is rather a general guide for all participants in administrative procedures.
This is also because when developing the draft law, its authors first of all considered the objective opportunities of Ukraine to implement its provisions in practice. It is the implementation of the law that will be the main challenge if it is adopted. Today, each area is regulated by separate laws at the level of many bylaws. In addition, the low institutional capacity of state and local self-government bodies hinders effective and understandable interaction with citizens and legal entities.
This logic also explains the fact that the specialized committee rejected some of the amendments made before the second reading. Thus, one of the MPs proposed an amendment that would oblige public administration bodies to justify the reasons for making a positive decision on the rights, freedoms, or legitimate interests of a person, just as such bodies justify their motives in case of making a negative decision. Such an amendment is inappropriate and unnecessarily burdensome for the future implementation of the law by public administration bodies. It is possible that this amendment was proposed in order to slow down the legislative process.
Thus, draft law No. 3475 “On Administrative Procedure” envisages important and necessary changes for the modern inefficient and corrupt sphere of public administration in Ukraine and is generally approved by international experts. Transparency International Ukraine also supports the position on the need to adopt such a draft law.
At the same time, the adoption of the Law of Ukraine “On Administrative Procedure” is only the first step towards reforming the sphere of public administration of our country. The next step will be to bring numerous bylaws into line with it, as is currently provided for in the final and transitional provisions of the draft law.
Only then will it be possible to fully implement the new procedural law in the field of public administration, which will be a significant step towards reforming the public administration of Ukraine as a whole.