УДК 349.3
PhD Malgorzata Ofiarska
THE RIGHT TO GOOD ADMINISTRATION AS A FUNDAMENTAL GUARANTEE OF PROTECTION OF CITIZENS’ RIGHTS INTRODUCTION
University of Szczecin, Republic of Poland
Одно из фундаментальных прав гражданина – право на эффективное законодательство и право на оптимальное управление. Право на хорошее управление гарантируется, среди других, Чартером Фундаментальных Прав Европейского союза и европейского Кодекса Хорошего Административного Поведения. Польская Конституция, принятая 2-го апреля 1997, не содержит положения в законе о праве граждан на оптимальное управление (но может быть получено из многих ее условий). Сегодня одной из потребностей общества является необходимость совершенствования стандартов административного права для защиты прав, в том числе право на медицинскую помощь.
One of the fundamental rights of citizen is the right to good legislation and the right to good administration. Proper implementation of citizens’ rights to good administration can contribute to more effective protection of their rights and to improve the operation of the public administration. The realization of this right depends, among others, from the proper separation, or even to codify the general part and specific part of the administrative law. Administrative law is without doubt the most comprehensive branch of law in Poland, especially given the amount of the regulated issues, as well as the diversity of the subject of legal regulation. This branch of law consists of – from different periods – a few hundred legislation acts and a few thousand executive acts to the laws governing almost all spheres of the individual life, the activities of state and other entities pursuing public authority. So far, parts of the general administrative law have not been isolated, defining and ordering rules for its use and that would contain a solution, which in principle should be applied in all sectors of this branch of law. First of all, good administration requires defining the basic concepts and regulating the institutions essential for the functioning of the administration, clarifying an individual’s position in its dealings with public administration bodies, which either in general has not yet been standardized, or regulated only in some areas of law in a heterogeneous way or regulates them too fragmentary. Judicial decisions sought to fill this gap for years, however, the practice of replacing the legislature by the courts is be assessed critically, because this was not the stabilization of law and strengthen public confidence in law.
At the same time, it does not seem possible to fully codify the administrative law that would contain a separate general part. Too frequent changes prevent it from happening, and would make the instability of such a code, and without doubt, possibly large sizes of the Code. It would not be possible to develop certain issues about the nature of general principles relating to all institutions regulated by such a codec (this may indicate a further attempt to pass a bill – General administrative provisions).
For many years, in the Polish literature there is a discussion, whether it is appropriate to implement the law that would contain provisions that could meet in the process of applying the substantive law of the administrative role of the general part of this branch of law. It has also been considered, what should be the scope and the arrangements for the issues that have major importance in the process.
Attempts to identify the part of the general administrative law.
Work on the bill – General Administrative Law initiated in the early seventies of the twentieth century in the Committee of Legal Sciences, Polish Academy of Sciences. In view of the divergence of views as to the scope of regulation by such a law, these works have not been successful. Indicated at the same time also uncertainty whether the development of a draft law due to the isolation of the Code of Administrative Procedure of 1960 [1] (governing the conduct of individual cases in the administration) of Chapter I, entitled «General Principles» (in fact, referring only to one, although the most common, form of government – administrative decision).
Again, the initiative works on the bill were adopted by the Legislative Council in September 1984. Prepared the development by J. Borkowski, justifying the need to establish such a law, and J. Swiatkiewicz, detailing issues that need to regulate the future law, have been incorporated by the Legislative Council to report on the state law (1986). We are also on the advisability of developing the «general rules» instead of «general principles» of administrative law. The doctrine discussed the need to pass a law on general provisions of administrative law, the desired range and the establishment of the binding force of the future scope of regulation. Disputes also included determination of the meaning of the act by certain terms that are relevant from a practical and legislative point of view.
The need for enactment of the Law – General Administrative Law was justified not merely by the absence of a general part, but also characteristic of administrative law, expressed in sensitivity to change of social relations and the needs of the state. Argued that the earlier reforms were limited to codify the procedure and that insofar as they relate only to the actions of government in the form of decisions and rulings. It was noted however, that the procedure has not fully covered all areas of the law.
The first draft of the Act – General Provisions of administrative law was signed with the date 25 April 1988, its goal was to create a permanent bases and ordering relations entered into by the state administration with an increasingly large and diverse group of entities. This was the more justified, because of the inability to codify a steadily expanded, revised and differentiated administrative law.
Another draft – General administrative law prepared by the Legislative Council cadence 1994–1997 (functioning by the Prime Minister) corresponded to a draft of 25 April 1988. It took account of the legal consequences of political changes, and alluded to the idea of rule of law (a concept was prepared before the enactment of the Polish Constitution of 1997 [2]). The need to adopt a general part of administrative law again justified volatility and fragmentation of administrative law, and its fragmented nature. It would apply not only to state bodies, state and local government agencies and social organizations, but also to all entities and individuals working in matters of public administration. Prepared by the Legislative Council a bill of general provisions of administrative law had a unifying character, because it used the jurisdiction of the Supreme Administrative Court, Constitutional Court and the Supreme Court and the achievements of administrative law doctrine. The intention of the designers was the inclusion in the general provisions the common solutions for different fields of administrative law, organize the conceptual apparatus, loopholes in administrative law and explanation of raising doubts, and indirectly – in turn – to harmonize regulation contained in separate regulations. It also facilitates the development of appropriate legal relationship between the administration and citizens and other actors. Another attempt made to draw up laws – General provisions of administrative law, however, has not led to the adoption of appropriate legal solutions by parliament [3, p. 117].
Polish Constitution adopted on 2nd April 1997 contains no explicit provision in the law about the citizens right to a good administration. However, this right can be derived from many of its solutions that include a set out in Article. 2 of the Constitution the principle of democratic rule of law that applies to all public authorities (and thus also to public authorities) [4, p. 116]. This character can be particularly attributed to the following solutions: principles of operation of public authorities on the basis of law (Article 7), the party’s right to appeal against judgments and decisions made at first instance in the proceedings before the administrative authorities (Article 78), control of government by the Supreme Administrative Court and other administrative courts (Article 184), and the right to compensation for damage caused by unlawful action of a public authority (Article 77). Banned the issuing of a decision against a national, legal persons and other entities are not subordinate to the issuing organization, such an act on the basis of normative acts of an internal nature (Article 93 paragraph. 2). Guaranteed citizens the right to obtain information about the activities of public authorities and persons exercising public functions, as well as other entities in so far as performing duties of public authorities and manage communal assets or property of the Treasury (Article 61). Banned capturing, collecting and sharing by the public authorities information on citizens other than those necessary in a democratic state of law and constitutionally guaranteed everyone the right of access to official documents and data collections, which may limit determined only by statute, and the right to request correction or deletion of false information, or information acquired in a manner inconsistent with the law (Article 51). Everyone has been granted the right to request the Ombudsman for assistance in protection of his freedoms or rights infringed by organs of public authority (Article 80) and the constitutionally guaranteed legal position of the Ombudsman as a guardian of freedom and human and civil rights set out in the Constitution and other normative acts (Article 208).
The proposed solutions contained in the draft – General administrative law, prepared by the Legislative Council cadence 1994–1997, were established ten years later. Expert group on the design of the general provisions of administrative law, appointed by the Ombudsman in June 2006, prepared a draft. It takes into account both the past achievements of doctrine and practice and the needs of the resolutions and recommendations of the European Union and Council of Europe (e.g. the recommendation of the Committee of Ministers of the Council of Europe Recommendation No. R (91) 1 of 13 February 1991 on administrative sanctions, or recommendation of the Committee of Ministers CM / Rec. (2007) 7 on good administration).
European guarantees of the right to good administration.
The right to good administration ensures, among others, Charter of Fundamental Rights of the European Union [5]. The right to good administration led by the Union institutions and bodies is a fundamental right. The Card grants anyone the right to an impartial and fair hearing of his case within a reasonable time by the institutions and bodies of the European Union. It includes: the right of everyone to be heard before any individual measure which would adversely affect him or her, the right of everyone to have access to his or her file, while respecting the legitimate interests of confidentiality and professional and business secrecy and the obligation of the administration to justify its decisions. Everyone has the right to claim compensation from the European Union, in accordance with the general principles common to the laws of the Member States, the damage caused by its institutions or servants in the performance of their duties (Article 41). To protect this right there is a right of action to the Court of First Instance and Court of Justice in Luxembourg, which act as administrative courts. Charter also confers on every citizen of the European Union and any natural or legal person residing or having its registered office in a Member State the right to ask the European Ombudsman cases of maladministration in the activities of the institutions, bodies and agencies of the European Union.
The right to good administration is also guaranteed in the provisions adopted on 6th September 2001 by the European Parliament – the European Code of Good Administrative Behaviour. The Code incorporates the principles of European administrative law formulated by the Court of Justice and refers to national solutions. The provisions of the Code are only recommendations in cases decided by the authorities of the Member States. However, they may play a positive role in improving the performance of public administration and in deepening the rule of law and confidence in relations with citizens and the internal relations of the various European Union countries.
The latest initiative to create a general part of administrative law.
Commission bill – General Administrative Law [6] submitted to the Parliament 12 January 2011 and was directed to and read at the meeting of the Sejm. The intention is a set of rules (rules) applicable in all aspects of the regulation widely understood administrative law, namely in the sphere of political, material – legal and process, including the financial law, and those parts of the labour law, which combine the use of administrative and legal instruments and forms of action. Refers to the legal principles applicable in the European Union and creatively develop the rule of law, especially of the Code of Good Administrative Behaviour.
Adoption of the proposed legal solutions will mainly eliminate confusion of terminology which is the source of doubt in the practice of public administration bodies and to build definitions of such basic concepts such as public administration, office (often wrongly equated with the administrative authority), public facility, public equipment, administrative recognition , An administrative decision and order, a final administrative and final order, administrative penalty, and the concept of leadership, control and surveillance (often inappropriately treated as synonyms.)
The provisions of the Act – General Provisions of administrative law will apply in the alternative, in matters of public administration in matters not regulated by separate laws. They will therefore apply to these laws to the extent not covered by specific provision as they set out. Therefore, it will concern i.e. definitions of the various legal institutions, the principle of respect for acquired rights (Article 8), the principle of protecting the faith and confidence that government officials act within the limits of the authority (Article 9), the principle of admissibility of interfering with the rights and obligations only under the rule of law generally applicable (Article 13); rules for the granting of rights and imposition, amendment and abolition of the duties of an administrative law (Chapter 3); established rules of handling matters in order to unify the standard safeguards to protect the interest of the individual and the public interest, i.e. equality, respect and confidence in the state of law, balancing the interests in matters of discretion, proportionality and fairness (Chapter 4); issues of sanctions for breach of administrative law (Chapter 5); rules for the conclusion, execution and termination by government agreements and administrative agreements (Chapter 6). The adoption of these solutions may lead to simplify and facilitate the application of administrative law and will remove the existing gaps in positive law. This should impact positively on the wider use of conciliation and negotiation methods of administration. Those elements also lead to the conclusion that this situation is likely to reduce the number of administrative disputes and matters to administrative courts. As a result, reducing the expenditure on public administration and administrative jurisdiction.
Closure.
Critical assessment of administrative law (especially the substantive law rather impossible to codify), the decodification of general administrative proceedings that arise in practical problems in applying the appropriate forms of administration and lack of normalization of new forms of action and the need to establish clearer criteria for control of action (behaviour ) of the administrative organs, make the urgent adoption of the act – general provisions of administrative law. The proposed solution to meet the requirements of a democratic state of law that will harmonize its law with the European Union and is bound to apply with the recommendations of the Council of Europe and European standards. It should constitute one of the factors that stimulate the desired changes in the sphere of government performance, while contributing to improving the standards of protection of individual rights in its dealings with the public.
The literature
1. Ustawa z dnia 14 czerwca 1960 r. Kodeks postępowania administracyjnego (tekst jedn. Dz. U. z 2000 r. Nr 98, poz. 1071 ze zm.).
2. Konstytucja Rzeczypospolitej Polskiej z dnia 2 kwietnia 1997 r. (Dz. U. Nr 78, poz. 483 ze zm.).
3. Ofiarska, М. Formy publicznoprawne współdziałania jednostek samorządu terytorialnego. – Warszawa, 2008.
4. Biuletyn RPO. Materiały. Prawo do dobrej administracji 2008, nr 60.
5. Dz.U. UE. C z 2007 r. Nr 303, poz. 1.
6. Sejm VI Kadencji, druk nr 3942.
One of the fundamental rights of citizen is the right to good legislation and the right to good administration. The right to good administration is guaranteed, among others, by the Charter of Fundamental Rights of the European Union and the European Code of Good Administrative Behaviour. Polish Constitution adopted on 2nd April 1997 contains no explicit provision in the law about the citizens right to a good administration (but can be derived from many of its provisions). The article justified the need for enactment of the act – General Provisions for the improvement of administrative law standards for the protection of individual rights in its dealings with the public, including the right to medical aid.
