About three administrative procedure rules from a human rights perspective

Author:Elena-Mihaela Fodor
Pages:218-238
SUMMARY

‘Single case decision-making is at the heart of national systems of public law, in Europe and elsewhere’, states the Introduction on Book III of the ReNEUAL Model Rules dealing with this subject. Some countries have adopted legislation on administrative procedures, others considered the general principles of law and jurisprudence as guiding milestones, even in a continental system of law. This approach may prove obsolete in times where private persons are more and more confronted with decisions of the administrative bodies, not only at a national level, but at the European one as well. Romania has not yet adopted a Code or Act of administrative procedure, although a project had been launched in 2007. The article observes the Romanian legal rules and jurisprudence regarding some sensitive points. The right to information of persons adversely affected by a decision regarding another person, the burden of proof and the privilege against self-incrimination in investigative procedures, the withdrawal/revocation of the single-case decisions, are discussed from a human rights perspective. A comparison is made, regarding such matters, with administrative procedure rules in European countries, looking for convergence points and differences.

 
CONTENT
218 ELENA-MIHAELA FODOR
ABOUT THREE ADMINISTRATIVE PROCEDURE RULES
FROM A HUMAN RIGHTS PERSPECTIVE
Elena-Mihaela FODOR*
ABSTRACT
‘Single case decision-making is at the heart of national systems of public law, in Europe and
elsewhere’, states the Introduction on Book III of the ReNEUAL Model Rules dealing with this
subject. Some countries have adopted legislation on administrative procedures, others considered the
general principles of law and jurisprudence as guiding milestones, even in a continental system of
law. This approach may prove obsolete in times where private persons are more and more confronted
with decisions of the administrative bodies, not only at a national level, but at the European one as
well.
Romania has not yet adopted a Code or Act of administrative procedure, although a project had
been launched in 2007. The article observes the Romanian legal rules and jurisprudence regarding
some sensitive points. The right to information of persons adversely affected by a decision regarding
another person, the burden of proof and the privilege against self-incrimination in investigative
procedures, the withdrawal/revocation of the single-case decisions, are discussed from a human rights
perspective.
A comparison is made, regarding such matters, with administrative procedure rules in
European countries, looking for convergence points and differences.
Keywords: administrative procedures, single-case decisions, access to information,
investigative procedures, withdrawal
JEL [23], [38]
1. Introduction
Public administration is exercising the executive power of the state. It
organizes the implementation of laws and enforces the legal norms. In doing so, its
whole activity is governed by the principle of legality, one the most powerful
among the principles governing the public administration.
The principle of legality represents the obligation of all administrative bodies
and public servants to act according to the competences given by law and apply
the procedures provided by law in exercising their competences. As the major
function of public law is the ‘channeling and organizing of power’, the bearers of
* Associated Professor dr., Christian University ‘Dimitrie Cantemir’, Faculty of Law Cluj-Napoca
Law Review vol. VI, special issue, December 2016, p. 218-238
About three administrative procedure rules … 219
public power should act according to the rules of the system (Kingsbury, 2009,
pp. 23-57). A procedure consists of a number of steps, defined in advance for each
type of task, with the aim of protecting both the public interest represented by the
administration and the rights of the individuals, in order to ensure the right
balance that is characteristic to a state of law (Rusch, 2009, p. 3).
The administrative procedures leading to acts with an external effect are the
ones that imply the aforementioned balance, as it is expressly considered in
German law (Schmitz, 2013, p. 1). Due to the lack of equality between the
administration that is able to enforce its decisions as the bearer of the public power
and the private persons, the administrative procedures were often subjected only
to analysis concerning the respect of the fundamental rights of the citizens
(Schmitz, 2013, p. 2) .
The consequences for disregarding the procedural rules are not the same in all
legal systems. In some cases the principle in dubio pro actione allows formal
shortcomings to be corrected in order to keep the procedure alive (Rusch, 2009, p.
26), in other cases the disregard of procedure may lead easier to the withdrawal or
annulment of the single-case decision.
Our study focuses on several procedure steps, considered to be important for a
fair balance between the public interest and the interest of the individual, or
between individuals with opposing interests, in the making of single-case
decisions: transparency of the process and the right to information of the person
adversely affected by a decision issued to another addressee, the burden of proof
and the privilege against self-incrimination in investigative procedures, the
withdrawal/revocation of the single-case decisions. Legislation of several
European countries is compared with the Romanian rules. The ReNEUAL Model
Rules1 are observed too. All these problems have been selected as human rights are
to be observed when choosing a solution.
Considering the fact that the term naming administrative acts that address to
individuals, in different acts issued in European countries, has been translated in
English using different terms, we will use the term ‘single-case decisions’ or
‘decisions’.
2. The rights of persons adversely affected by a decision regarding another
person
In certain situations, single-case decisions issued at the request of an interested
party, may have an adversely affect to a smaller or larger number of other persons.
Building authorizations (e.g. a building authorization that does not respect the
1 The Research Network on EU Administrative Law – ReNEUAL is a research group that
proposed a set of procedural rules for EU institutions, that may also be a model for national
administrative procedures. The 2014 Online Version of the ReNEUAL Model Rules can be found on
http://www.reneual.eu/, accessed at 5 May 2016.
220 ELENA-MIHAELA FODOR
distance between the neighboring buildings or the height set by the urbanism
rules) or authorizations for setting a certain destination to buildings (e.g. the
authorization to use a building as a funeral chapel or a crematory) may adversely
affect the owners of the neighboring real estates. Environmental permits for
different economic activities may affect a larger number of persons. This raises the
questions upon the possibility of third parties to obtain information about the
documents that founded the administrative decision and the possibility of the
adversely affected third party to intervene in the administrative procedure in order
to protect his rights, before the decision is concluded. The European Charter of
Fundamental Rights of the European Union attached to the Treaty of Nice (2000),
considers the adversarial principle mentioned in Art. 41 as forming part of the
right to a good administration. This principle includes the obligation to hear the
interested parties along the whole procedure and especially before producing the
resolution (Rusch, 2009, p. 6).
In the Romanian legislation, generally the protection of the rights of third
parties that may be adversely affected by a single-case decision addressed to
another is ensured by the requirement of an express agreement that has to be
attached to the application, usually in a notarized form, given by the person
presumed to be adversely affected. The most common situation regards building
permits, change of destination for real estate, authorizations or licenses for
different activities, where the persons presumed to be adversely affected are the
neighbors (e.g. Law 50/1990 regarding building authorization, point. 2.5.6. of
Annex 1). No right is recognized for the adversely affected person who did not
give such an agreement and believes the agreement should have been necessary, to
have access to the procedure or the documents presented by the applicant. Such an
attitude presents a real problem for the adversely affected person, as there is no
way he can establish if the administrative authorization will be or has been issued
with consideration to his rights or legal interests. He is forced to lodge a ‘blind’
administrative appeal and then a ‘blind’ action to court, contesting the
administrative decision without actually knowing the reasons of unlawfulness.
Once in court, it would be possible to ask the administrative authority to present
all the documents that founded the administrative decision and prove that an
agreement form the adversely affected person was necessary and has not been
requested, or that the decision has been issued/adopted in breaching the law. The
lack of provisions providing access to documents, without infringing the right to
privacy or business secrecy, or to an adversarial procedure before concluding the
procedure, may result in a lot of wasted effort from individuals, administrative
authorities and courts. The project for an Administrative Code, drafted for the first
time in 2007 and modified later after internal consultation2, mentions that any
2 The Project of the Romanian Code of Administrative Procedure may be found at
www.juridice.ro/wp-content/uploads/2012/12/Proiect-COD-procedura-administrativa.pdf,
accessed on 4 May 2016.
About three administrative procedure rules … 221
person that is or might be affected by the result of a procedure has the right to be a
part of the procedure, upon request or ex officio, the public authority being obliged
to inform the persons that might be interested if they are known (Art. 30). The right
of access to relevant documents of the participants to the procedure is also
mentioned (Art. 60).
The general rules of administrative procedure in other European countries
contain provisions for protecting the rights of the ones adversely affected by a
procedure that will conclude with an administrative single-case decision following
the application of another person.
The German Administrative Procedure Act (Verwaltungsverfahrensgesetz –
VwVfG, 1976) contains more detailed provisions. According to Section 13 para. (1)
the participants to an administrative procedure may be those making and
opposing an application, and according to para. (2) of the same Section ‘The
authority may ex officio or upon request involve as participants those whose legal
interests may be affected by the result of proceedings. Where such result has a
legal effect for a third party, the latter may upon request be involved in the
proceedings as a participant. If the authority is aware of such third parties, it shall
inform them that proceedings have commenced’. The participation in the
administrative procedure includes the possibility of the participants to inspect the
documents connected with the proceedings where knowledge of their contents is
necessary in order to assert or defend their legal interests, without impairing the
right to secrecy with regard to private and business secrets. It also includes the
right to be heard of the person that might be adversely affected. Until
administrative proceedings have been concluded, the foregoing sentence shall not
apply to draft decisions and work directly connected with their preparation
(Section 29 para. (1)). Based on the inquisitorial principle, the administrative
authority will establish the facts of the case ex officio, without being bound by
submissions of the participants and motions to admit evidence, but it must take
account of all relevant circumstances, including those favorable to the participants
(Section 24). It has been showed that the rules of German administrative law
permit the ‘cure’ of procedural flaws, as long as they are not really relevant for the
decision-making process, and that such a view (especially in areas like planning
and building) may result in the risk that the procedural rights of the citizen will not
be taken seriously; in the case of those opposing a decision, if they are heard after
the decision is taken, it will be a pure formal hearing with an insignificant chance
to revert the decision (Schmitz, 2013, p. 8).
The Dutch General Administrative Law Act - GALA (Algemene wet
bestuursrecht) states that an interested party - a person whose interest is directly
affected by a decision - shall be able to participate in the procedure that will lead to
the decision (Section 1:2(1) of the GALA). This is the case in the procedure that is
prescribed for individual decisions too, according to Section 4:8 stating that ‘Before
giving a decision about which an interested party who has not applied for the
222 ELENA-MIHAELA FODOR
decision can be expected to have reservations, an administrative authority shall
give that interested party the opportunity to make known his views if: (a) the
decision is based on information about facts and interests relating to the applicant,
and (b) this information was not supplied by the interested party himself in the
matter.’ According to the case law a person is considered to be interested in the
decision if it the interest affected is ‘the person’s own, personal, objectively
determinable, current and directly affected interest’ (Tolsma, et al., 2009, p. 313).
This interpretation was found to be broader then in the German case law, but
narrower that the French (Kleijne, 2009, p. 15). Comments upon these legal
provisions showed that ‘interested parties who did not file any application have
the right to be heard only if the decision prepared is based on information that
relates to them’ and that usually full rights to a hearing for interested parties in
respect to decisions issued following an application only exist if the interested
parties will appeal the administrative decisions in court (Barkhuysen, et al., 2012).
The rights of the interested parties are protected by the fact that although an
administrative order may be considered valid even if infringements in the
procedure have been found, this will not be the case if the infringement has
prejudiced the interests of the interested parties (Kleijne, 2009, p. 12).
The Latvian Administrative Procedure Law mentions among the principles of
the administrative procedure the principle of observance of the rights of private
persons (Section 5). Section 24 of the Law mentions third parties among the
participants to the administrative proceedings. According to Section 28 a private
person whose rights or legal interests may be infringed by the relevant
administrative decision may be a third party in administrative proceedings. Third
parties may obtain information in connection with an administrative procedure,
except for the restricted information under the law; part of the information may be
provided, if its meaning is not lost or changed after the part not to be disclosed is
removed (Section 54).
The Italian Administrative Procedure Act (Law 241/1990) states in Section 7
that in case a measure is capable of adversely affect identified or easily identifiable
parties other than its direct addressees, the authority shall have the duty to inform
them of the beginning of the procedure. If personal communication is impossible
or particularly onerous on the account of the number of addressees, suitable forms
of publicity may be used (Section 8). Any party having a private interest adversely
affected by a measure shall have the right to intervene during the related
procedure (Section 9). Such intervening parties have the right to inspect the
procedure’s documents and to present documents and written arguments; the
authority has the duty to evaluate such documents if they are pertinent to the
object of the procedure (Section10).
In case a single-case decision making has a negative effect upon a larger
number of persons, the meaning of ‘interested party’ is much more relaxed.
About three administrative procedure rules … 223
In the Czech Code of Administrative Procedure (Law 500/2004), an
administrative body is obliged to enable all persons concerned, not just parties in
the proceedings, to raise their legitimate interests; the participation of ‘the public’
in the decision-making process is dealt with only marginally (Staša & Tomášek,
2012, p. 67).
The Law on Administrative Procedure of Bosnia and Hertzegovina (2002)
shows that a ‘party’ is not only the person under whose request the procedure has
been instigated, or against whom the procedure has been conducted, but also the
person who has the right to participate in the procedure in order to protect his
rights or legal interests (Section 41). According to Section 72, the parties have the
right to inspect case files and transcribe necessary files at their expense, under the
supervision of an official. This right is specifically granted to every person who
makes probable his interest in doing this, as well as social organizations and
associations of citizens, if there is a justified interest. Also, an interested party can
participate in the examination procedure, give information and defend his rights
and legally protected interests, can address questions to other parties, can get
acquainted with the outcome of the furnishing evidence and provide his position
on that (Section 134).
The 1998 Convention on Access to Information, Public Participation in
Decision-Making and Access to Justice in Environmental Matters of The United
Nations Economic Commission for Europe (UNECE), known as The Aarhaus
Convention, recognizes the right to participate to the decisional process, as well as
the right to contestation of the administrative act to court. According to Art. 9 para.
(2) of the Convention referring to the access to justice, an interested party is
someone having a sufficient interest (letter a) or, alternatively, someone
maintaining impairment of a right, where the administrative procedural law of a
party requires this as a precondition (letter b). The sufficient interest and
impairment of a right shall be determined in accordance with the requirements of
national law. Special provisions of Art. 9 para. (2) concern the non-governmental
organizations promoting environmental protection and meeting the requirements
set under national law, which are always considered to have a ‘sufficient interest’
and shall also be deemed to have rights capable of being impaired.
Interested parties have the right to receive environmental information that is
held by public authorities, within one month of the request and without having to
say why they require it, have the right to make comments that have to be taken
into account in the decision-making process and the right to be provided on the
final decisions and the reasons for it (Comission, 2016). Following the Aarhaus
Convention, in 2003 two Directives concerning the first and second ‘pillars’ of the
Aarhus Convention were adopted; they were to be implemented in the national
law of the EU Member States by 14 February and 25 June 2005 respectively:
Directive 2003/4/EC of the European Parliament and of the Council of 28 January
224 ELENA-MIHAELA FODOR
2003 on public access to environmental information and repealing Council
Directive 90/313/EEC and Directive 2003/35/EC of the European Parliament and
of the Council of 26 May 2003 providing for public participation in respect of the
drawing up of certain plans and programs relating to the environment and
amending with regard to public participation and access to justice Council
Directives 85/337/EEC and 96/61/EC. Member states have adopted special
legislation in order to implement the Directives. A study searching for problems in
the application of the Aarhaus Convention in seven EU member states revealed
that very often third parties may be affected by single-case decisions addressed to
individuals, like permits for planning or developing activities issued to private
persons. The study also found that in relation to the possibility of reviewing
individual acts or their outcomes, the legal orders of the parties make insufficient
provisions for meeting the specific requirements of Art. 9 para. (2). Romania
ratified the Aarhaus Convention by Law 86/2000. The G.E.O. no. 195/2005
provides the right of the public to be informed about activities that affect the
environment, with the protection of the right to privacy and confidentiality
according to the law, and the access to court in such matters. Non-governmental
organizations that promote the environmental protection have a right to action in
court in environmental matters (Lazr, 2007, pp. 420, 424).
In the Netherlands, on the basis of Section 1:2, subsection 3 of the GALA
non-governmental organizations, including environmental protection associations,
have greater access to the courts than natural persons, as interested parties, since
they can represent general interests, including environmental interests (Koeman,
2013, p. 1). A right to access to court should imply the fact that a right to ask and
receive information from the administrative body, in the process of
decision-making exists, as the statements of the interested party may lead the
administrative authority to a lawful decision and may prevent the need for
addressing the court in order to contest the administrative decision.
In Book III of the ReNEUAL Model Rules, dealing with single case
decision-making, the notion of ‘party’ is defined as ‘the addressee of the intended
decision and other persons who are adversely affected by it and who request to be
involved in the procedure’ - Art. III-2, para. (3). Art. III-23 consecrates the right to
be heard by persons adversely affected, stating that ‘every party has the right to be
heard by a public authority before a decision, which would affect him or her
adversely, is taken’ – para. (1). Further on, provisions regarding an adversarial
procedure set the frame for the possibility of each party to defend its views on the
matter and exercise its rights of defense. However, there are no possibilities
provided for a third party that may be adversely affected by a decision issued
following the application of another to have access to the case file. The provisions
regarding the access to file show that ‘every party has a right of access to his or her
file’ (Art. III-22, para. (1)), or that ‘every party shall have the opportunity to
examine all documents in his or her file, which may be relevant for its defense’ (Art.
About three administrative procedure rules … 225
III-22, para. (3)). Thus, it will be difficult for an interested third party to establish if
the decision that will be taken by the public authority following the application of
another has the potential to infringe his or her rights. For example, in case of a
building permit, or a permit for developing certain economic activities, the
interested third party may be interested to see the project of the building, in order
to verify if the planning rules are respected or if all the necessary documents that
should be attached to the application have been filed or obtained. So, the finality of
the possibilities for a person, who is adversely affected by a decision issued
following the application of another, to be heard during the decision-making
process, or to contest by an administrative recourse or in court the final decision of
the administrative authority is incomplete as long as this party will not have access
to information that does not contain private data, or business plans, but technical
documents of the applicant. It will be difficult in these conditions to conclude if the
act that is going to be concluded by the administrative authority, following a
request of an applicant, will infringe or not rights or legitimate interests of a third
interested party. It is difficult to defend one’s rights or legitimate interest if one
does not know if there is an infringement (but can only guess) and what exactly
lead to the infringement. Any action, during the preparation of the administrative
act or afterwards will be a shot in the dark, leading to a waste of time and money
both for the state and the interested third party. We agree to the conclusion that the
notion of interested party should be clearly regulated in a way consistent with the
principle of administrative openness while, at the same time, protecting the
privacy of individuals (Rusch, 2009, p. 9). That would mean that the access to a file
regarding an administrative decision should be granted to every interested party,
during the decision-making process or after the decision is concluded, with the
aforementioned limitations, as is the case in national regulations.
Special provisions in the Model Rules consider the case when the decision may
affect a large number of persons. In such cases an authority making the decision
may give effect to the obligations in Art. 11 TEU by consultation of the ‘interested
public’ (III-25).
The right to information is already consecrated as a human right and in
relation with public authorities it is linked to democracy and transparent
governance. In the first session in 1946, the UN General Assembly adopted
Resolution 59(I), stating: “Freedom of information is a fundamental human right
and ... the touchstone of all the freedoms to which the United Nations is
consecrated.” Under the Art. 10 of the European Convention of Human Rights, a
right to information is recognized for protecting other rights, for example in
connection with family life (Gaskin v. UK) or a safe environment (Guerra v. Italy).
The UN Special Rapporteur on Freedom of Opinion and Expression has shown in
successive annual reports to the UN Commission on Human Rights that the right
to access information held by public authorities is protected by Art. 19 of the
International Covenant on Civil and Political Rights (ICCPR) (Mendel, n.d.). We
226 ELENA-MIHAELA FODOR
conclude that in order to respect the right to information in the sense of a human
right, the administrative procedure rules should permit the access to information
in all cases a person is searching to protect another right belonging to the group of
human rights.
3. The burden of proof and the privilege against self-incrimination in
investigative procedures
The autonomous concept of ‘criminal charge’ developed by the European
Court of Human Rights (ECtHR), brought in the Romanian jurisprudence the topic
of the presumption of innocence in case an administrative inspection/investigation
is conducted or an administrative sanction is applied. Romanian jurisprudence
embraced the conclusions of the Slabiaku v. France case, stating that the
presumption of innocence is not an absolute one in the administrative procedure,
as presumptions of facts or law operate in every legal system, which are not
prohibited in principle by the European Convention of Human Rights (ECHR) as
long as they respect certain limits and the rights of defense are not breached, in the
sense that the administrative act is presumed legal but the offender has the
possibility of proving otherwise (Fodor, 2010, pp. 73-74). The contesting procedure
of administrative decisions in Romania is governed by the rules of civil procedure
where the principle onus probandi incubit actori attributes the burden of proof to the
contestant. Case law relies mostly on the idea that the possibility of contesting the
punitive sanction to court, where one may bring proof of one’s innocence, enacts
the presumption of innocence (Fodor & Buzdugan, 2013, pp. 503-504). There are no
general rules concerning administrative investigation and inspection. Usually,
special norms provide the obligation to provide information to the public
authority, including statements, without considering a privilege against
self-incrimination, even if the procedure may end with the application of an
administrative sanction of a punitive nature, which is contrary to the provisions of
Art. 6 of the ECHR in respect with the rights attached to the autonomous concept
ofcriminal charge. This is also the case in the Project of the Code of
Administrative procedure (Chapters III-V). There are no rules regarding the use of
information obtained with the breach of the investigative procedure, except for the
one establishing that breaching the rules regarding hearing of the investigated
party results in the nullity of the unfavorable decision concluding the procedure.
The legal professional privilege is not mentioned either, although special
dispositions may be found in the laws or statutes regulating different liberal
professions, as is the case of Art. 228 of the Statute of Lawyers.
Looking into the administrative procedure of several European countries we
can see that rules or interpretation of such matters depend on how close the
criminal procedures are regarded in relation with the administrative ones that may
result in punitive sanctions.
About three administrative procedure rules … 227
In Belgium law, a decision of the Constitutional Court stating that ‘It is the
administration’s task to prove facts committed by the alleged infringer, not just
when it imposes the fine, but also when its decision is appealed. [by forcing the
addressee to initiate any appeal] the legislator did not intend to abandon the
presumption of innocence’ (Put & Andries, 2013, p. 141). Regarding the privilege
against self-incrimination, although certain legal acts impose a duty to provide
information in the case of supervision of fiscal or social matters, Belgian case law
has ruled that the subject of any inquiry is not obliged to cooperate if this may lead
to the imposition of administrative sanctions with punitive character; the right to
remain silent against self-incrimination does not affect the power of the
administration to examine potentially self-incriminating records, as the Court of
Cassation did not consider the legal duty to hand over documents to be a violation
of the principle of presumption of innocence or the privilege against
self-incrimination (Put & Andries, 2013, pp. 143-144).
In the Austrian law, in the case of the administrative penal procedure (a
procedure of directing certain behavior by punishments – mainly fines – as a part
of the administrative law), considering the application of Art. 6 of ECHR, the
accused must not be burdened with the onus to prove his innocence, remaining to
the administrative authority to prove the physical and mental elements of the
offence; it is not allowed to deduce guilt from lack of cooperation of the accused
(Höpfel & Kert, 2013, pp. 36,62).
Usually, the inspection/investigation procedures contain provisions regarding
the rights and duties of the authority and the ones being investigated. In German
law the rights of the participants (as mentioned in Section 13 of VwVfG) include
the right to bring in representatives and advisors (section 14), the right to advice
and information by the public authority (section 25), the right to be heard (section
28) with the exceptions provided, the right of inspection of files (section 29) and the
right to secrecy of the participants with regard to private and business secrets
(section 30). Although there are no specific dispositions regarding the fact that the
right to be heard also apply when the authority is intending to dismiss the
application, we agree that it should be no difference with other situations, since the
opinion of the interested party may change the decision of the authority (Schmitz,
2013, p. 6).
It has been showed that in German law, the participants have procedural
rights but no procedural duties (Schmitz, 2013, p. 6), as the VwVfG uses the term
‘shall’ (solen) in the sense of ‘are expected’ not ‘must’ when it describes the
cooperation of the participants; it is a matter of responsibility, not a duty and if a
participant refuses to cooperate by stating facts and evidence known to him he
bears the risk of unfavorable decision but does not violate a legal obligation
(Schmitz, 2013, p. 7). Section 26 para. (2) provides for a more extensive duty to
assist in ascertaining the facts, and in particular to appear personally or make a
statement, only where the law specifically requires it.
228 ELENA-MIHAELA FODOR
In Spanish administrative procedures, the principles of criminal law regarding
investigations apply in full; it is considered that, as a consequence, the burden of
proof rests with the administrative body. However, the case law is not clear in
establishing if when contesting the punitive sanction in court the accused has to
prove any exonerating and mitigating factors, or it is the administration that must
prove the absence of such factors (Puig, et al., 2013, p. 536). It has been concluded
that the presumption of innocence requires that the sanction eventually imposed
should be grounded on however minimal evidence, obtained by valid means,
which must be presented by the Administration, formally adduced and fairly
evaluated (Puig, et al., 2013, p. 537). The right to refrain from self-incrimination
allows the accused to remain silent and to decide on the content of any statement is
considered compatible with the duty of information and cooperation with the
administrative inspectorate in certain cases like the obligation to comply with an
alcohol test, the requirement to provide information to fiscal authorities, the
requirement to identify the person who was driving when the offence was
committed, even though the information may be used to incriminate the accused
(Puig, et al., 2013, p. 535).
The existence of a presumption of innocence in case of administrative
inspections that may result in sanctions with a punitive character in the
Netherlands is regarded as in Romanian jurisprudence. Parliamentary Preliminary
Draft Proposals stated that in case of administrative infringements ‘the
administrative authority need not prove culpability, but may assume this if
perpetration has been definitely established. (…) To avoid the imposition of a fine,
the infringer will then have to appeal to the absence of all guilt, and make this
absence convincing’ (Jansen, 2013, p. 414). It has also been shown that the findings
in Dutch criminal case law, that the fact that a suspect remains silent cannot be
used as evidence, but this does not mean that the judge cannot value the lack of
clarifying or disculpatory explanation from the suspect (following the ECtHR
Murray v. UK case), should also apply in administrative law related to punitive
sanctions (Jansen, 2013, p. 415).
The ReNEUAL Model Rules consecrate in Section III-14 (1) the privilege
against self-incrimination and the legal professional privilege. Both rights are
protected in case the inspection may lead to an administrative sanction. The
protection is made effective by the fact that where these privileges have been
violated in the course of gathering information, the information must not be used
as evidence in procedures by public authorities if this violation could have had an
impact on the content of the decision (section III-14 (2)). No provisions regarding
the burden of proof are mentioned in the 2014 Version for online publication.
We conclude that rules in administrative investigation procedures should
comply to the rights of defense consecrated by the ECHR.
About three administrative procedure rules … 229
4. Withdrawal/revocation of the single-case decisions
Due to the large decision power of the administration, the possibility of
withdrawing its own decisions is generally recognized. By withdrawing a
single-case decision, the possibility of the issuing authority to terminate it for the
future or with retroactive effects is understood. Usually withdrawal may occur,
with retroactive effect, because the single-case decision breaches the law or, with
prospective effect, because the circumstances considered at the issuing moment
have altered or views have changed in such a way that they are opposing to the
continuance of the effects of the decision.
Such possibilities are recognized by Romanian doctrine and jurisprudence. No
time limit is set for the withdrawal of an unlawful decision. Exceptions from the
possibility of withdrawal are considered the jurisdictional administrative
decisions, the administrative single-case decisions that were used to obtain civil
contracts (exception referred to in Art. 1 para. (6) of Law 554/2004), the
administrative decisions considered as non-withdrawable by the law and the
administrative decisions granting certain rights, which were fully executed. These
exceptions do not exclude the possibility of the court to annul the decision, within
the time-limit established by the law. The withdrawal of an unlawful single-case
decision obtained by fraud is always possible (Petrescu, 2014, pp. 327-331). The
withdrawal of an unlawful single-case decision usually has a retroactive effect,
while the withdrawal of a lawful decision will only have effect for the future. A
particular situation refers to authorizations. The ones legally issued by the
administrative authorities in the exercise of their discretionary power, regarding
continuous activities (licenses) may be withdrawn. The withdrawal does not give
the right to financial compensation, as it is presumed that the beneficiary was
aware of the possibility of withdrawal from the very beginning; compensation may
only be granted if there is a special provision of the law, if the withdrawal decision
is unlawful or unreasonable (an abuse of power) (Iorgovan, 2002, pp. 90-91).
Although the doctrine considers that the validity of a single-case
administrative decision depends of the seriousness of the vice or the validity
conditions imposed by the law (Fodor, 2012, p. 435), the recent case law shows that
courts generally annul, as unlawful, the decisions issued/adopted with the
omission of procedural requirements. The omission to request an opinion lead to
the annulment of a Government Decision by the High Court of Cassation and
Justice, despite the fact that the public authority was not bound by the conclusions
of the opinion (Decision no. 2579/2008, Department of Administrative and Fiscal
Litigation). The argument that the Government would have decided in the same
way, regardless of the opinion of the Economic and Social Council was rejected by
the court. The ruling prevents the possibility of omitting a requirement presumed
necessary by the law. A series of court decisions have annulled the decisions of
local councils that were adopted after the proposal for the decision was introduced
230 ELENA-MIHAELA FODOR
on the agenda of the meeting on grounds of emergency, when no emergency could
be proved in front of the court. The argument that the same decision would have
been adopted in another meeting, when the proposal would be properly
introduced on the agenda was rejected, as the rule in Romanian jurisprudence is
that the legality of an administrative single-case decision is established according
to the conditions from the moment it was adopted or issued (Fodor, 2012, p. 435).
The course of events proved many times that in another meeting, with time to
think over and gather relevant information on the proposal, opinions of some of
the councilors changed and the decision could not be adopted in legal conditions
after the invalid one has been annulled.
The Project of the Code for Administrative procedure mentions that revocation
(revocarea) dissolves the illegal administrative disposition with retroactive and
prospective effect, for reasons that proceed, are concomitant or subsequent with
the issuing/adopting the decision. The decision may be revoked only inside the
time limit for legal challenge. The favorable decision that grants continuous
advantages may be revoked only if the advantages are used in another purpose
that the one they were granted for, or the beneficiary fails to comply with a
condition related to the decision or fails to comply within the provided time limit.
Jurisdictional decisions cannot be revoked, as well as other decisions according to
law (Art. 141). In our opinion the provisions of the Project in this matter are a step
back from the rules applied at this moment and even further from the European
vision.
In Dutch law, there are no general rules for the withdrawal of unlawful
administrative single-case decisions, owing to the wide variety of policy fields and
situations that have to be covered. The GALA mentions the possibility of
withdrawal in Section 4:48 and Section 4:49, regarding the granting of subsidies,
the aforementioned sections showing that an administrative authority is
empowered to withdraw its final decision to the detriment of the grant recipient if
the decision is incorrect and the grant recipient should have known this, or the
decision is based on incorrect information provided by the grant recipient and the
authority would have taken a different decision if it had been supplied with the
correct information (Kreveld, 2008, p. 5). The power to withdraw a single-case
decision is implicitly assumed to exist if the case in question involved discretionary
power, even if special Acts do not include provisions regarding this possibility
(Graaf & Marseille, 2007, p. 88).
In the case of favorable unlawful final single-case decisions, the principle of
legal certainty has to be considered in opposition with the principle of careful
assessment of the interests concerned; the principle of legal certainty will generally
prevail where the unlawful decision holds the granting of a license but will be
weaker in the case of financial decisions (Kreveld, 2008, p. 6). The third party
adversely affected by an unlawful single-case decision (an unlawful permit
granted to the neighbor or an unlawful license granted to a competitor) has to
About three administrative procedure rules … 231
apply to the issuing authority demanding the withdrawal of the decision, before
going to court. The administrative authority is obliged to re-examine the final
decision only if the third party concerned has put forward a new fact that was not
known when the decision was taken, but even in such a situation, the
administrative authority will not lightly withdraw the decision, as it may have to
pay compensation to the addressee (Kreveld, 2008, p. 7) due to the infringement of
the principle of legal certainty.
It has been shown that when balancing the principle of legal certainty with the
principle of lawfulness, the principle of proportionality, mentioned by Section
3:4(2) of the GALA, will give the answer, obliging the administrative authority to
evaluate ‘how important is the interest of redressing the erroneous decision in
proportion to the interest of the parties involved being able to act in accordance
with the legal status granted to them’ (Graaf & Marseille, 2007, pp. 83-84). Relevant
court cases in the matter of the obligation of the administrative authority to
withdraw an unlawful decision are Raad van State, showing that the administrative
authority’s power may never lead to an obligation to grant request for
reconsideration in spite of the absence of new facts that have emerged, and Centrale
Raad van Beroep showing that, on the basis of equality before the law, the
administrative authority has an obligation to grant a request for withdrawing the
unlawful decision, even if it is not based on new facts or altered circumstances and
even though the party involved let the time limit for lodging a legal remedy to
expire (Graaf & Marseille, 2007, pp. 90-92). It has to be mentioned that the
conclusions of the latter case were find to apply only if the administrative
single-case decision was issued breaching a norm of the EU law.
The withdrawal may have retroactive effect in the case of unlawful or
erroneous single-case decisions, or may have prospective effect in the case facts,
circumstances or the law changed after the decision was made in such a way that it
can no longer be upheld; the administrative authority will weigh each time the
relevant interests against each other (Graaf & Marseille, 2007, p. 84).
In German law, VwVfG contains more detailed rules. An unlawful
administrative act may, even after it has become non-appealable, be withdrawn
(Rücknahme) retrospectively or with effect for the future, with some restrictions in
the case the decision is advantageous for the addressee (Section 48). The time limit
for the authority to withdraw the unlawful decision is one year from the date it
gained knowledge of the facts justifying the withdrawal. The authority shall upon
application make good the disadvantage to the person affected for breaching the
principle of legal certainty. In case the decision was obtained by false pretenses,
threat or bribery the time limit for withdrawal will not apply and the authority has
no obligation to make good the disadvantage to the person affected.
Section 49 of the VwVfG sets the conditions for the revocation (Widerruf) of
lawful administrative single-case decisions, distinguishing between the
non-beneficial decision situation and the beneficial decision one. In the latter case,
232 ELENA-MIHAELA FODOR
situations that permit the revocation are the permission of law, reservations in the
administrative decision itself, noncompliance of an obligation, change of
circumstances in a way that failure to revoke the decision would be contrary to the
public interest, change of law in a way that failure to revoke the decision would be
contrary to the public interest and the beneficiary has not yet received any benefits
derived from the decision, prevention or elimination of serious harm to the
common good. The time-limit considerations from the case of the withdrawal of
unlawful decisions also apply. The revocation will produce effects only for the
future. In situations mentioned by Section 49 para. (6) the authority shall upon
application make good disadvantage to the person affected, on the basis of the
principle of legal certainty, to the extent that his reliance merits protection.
Section 48 and Section 49 refer to the situations where the authority itself
becomes aware of the reasons that may lead to withdrawal or revocation. The
reconsideration of a single-case decision at the request of an interested party is
regulated in Section 51, which makes it a condition that ‘new evidence is available
which would have led to a decision that was more favorable for the party
involved’. A time limit of three months from the date on which the party involved
has received notice of the grounds for withdrawal is set for the request. It is
assumed in the literature that the enumeration in Section 51 does not detract from
the power of administrative authorities laid down in Sections 48 and 49 to
withdraw previous made decisions, regardless of whether one of the situations
referred by Section 51 has arisen or not, but in the first case the administrative
authority has an obligation to reconsider, whereas in the second case it only has the
power to do so (Graaf & Marseille, 2007, p. 92). Section 51 also mentions that the
application for withdrawal shall only be acceptable when the person affected was,
without grave fault on his part, unable to enforce the grounds for resumption in
earlier proceedings, particularly by means of a legal remedy.
The German case-law of the Federal Administrative Court of Germany
(Bundesverwaltungsgericht) emphasizes that the principles of ‘substantive justice’
and legal certainty have equal value; only in certain circumstances the
interpretation may be that substantive justice takes precedence, ‘without violating
legislative freedom’; such special circumstances may be said to exist if the
administrative authority has already reviewed its decision in similar cases, if
holding to the original decision is absolutely unacceptable, or if the refusal to
reconsider the legally incontestable decision will result in a violation of good faith
and propriety (Graaf & Marseille, 2007, pp. 93-94). The opinion that such detailed
rules and the views regarding the obligation of the administrative authority to
withdraw, revoke or reconsider its decisions is not consistent with the possibility of
‘curing’ the ‘formal defects’ and ‘procedural errors’ by subsequent activities even
during administrative or judicial review proceedings, together with the reticence of
the courts to actually find special circumstances that should impose the
reconsideration has been expressed (Graaf & Marseille, 2007, p. 94). Also, the fact
About three administrative procedure rules … 233
that the possibility to ask for the annulment of a single-case decision on grounds of
infringement of procedure rules is not admissible if it is evident that this
infringement has not influenced the decision on the matter, was considered to
create the risk that the citizen is not taken seriously (Schmitz, 2013, p. 8). It is
difficult to assess what would have been the decision of the administrative
authority if certain steps of the procedure were not eluded, and we agree that if a
procedural rule is set, it should not only be recommended but implemented and
the formal defects sanctioned. But if we consider that an administrative single-case
decision is unlawful if it contradicts juridical norms with a higher force or infringes
severely someone’s legal interests, than there is no contradiction between the rules
regarding withdrawal and the possibility of curing formal defects.
The Italian Administrative Procedure Act also provides for the possibility of
the administrative authority to annul (annullamento d’ufficio) an unlawful
single-case decision. According to Section 21-nonies, this can be done when there
are grounds in the public interest for so doing. The last part of para. (1) from the
same section mentions that in taking the decision to annul ex officio the unlawful
decision the authority must take account of the interests of the addressees and
parties with conflicting interests. We conclude that not only the public interest may
lead to the annulment, but breaching of legal interests of a third individual too.
There is no fixed time limit for the possibility of annulment, the legal text only
mentioning that it may be done ‘within a reasonable timeframe’. In the Italian
procedure too, the form or procedure infringements will not always lead to the
voidability of the decision. According to para 2 of Section 21-octies a decision
adopted in breach of rules governing procedure or the form of instruments shall
not be voidable if it is evident that the provision it contains could have not been
other that the one actually adopted. The same is valid for inspections, in case the
authority failed to communicate the commencement of a procedure. In our
opinion, it is difficult to presume that the result of an inspection would be the
same, weather its commencement has been communicated or not. Such a
presumption is, in our opinion, an infringement of the right to defense.
Administrative decisions adopted in breach of the law or vitiated by excess of
power or by lack of specific jurisdiction shall always be voidable. Also, para. (2) of
Section 21-nonies states that where grounds in the public interest exist, the
authority may validate the voidable decisions, within a reasonable timeframe.
Mentioning the situations when a decision is voidable, the breaches that always
result in the possibility of annulment and the ones that may be set aside with the
consequence of maintaining the decision as valid contribute to legal certainty. The
only uncertainty results from the ‘reasonability’ of the time limit, but, this is a
consequence of the balance between the legality and legal certainty principles that
can only be established for each particular situation.
The revocation (la revoca) of lawful single-case decisions having continuing
effect is possible in case of subsequently arising reasons of public interest or in case
234 ELENA-MIHAELA FODOR
where concrete situations change, or the original public interest is re-assessed,
according to Section 21-quinquies. The effects of revocation will be produced only
for the future. The administration will have an obligation to compensate the parties
adversely affected by revocation.
In the Czech law, the Code of Administrative procedure also balances the
interests in remedying the defective situation with the interest in preserving the
rights acquired in good faith when an unlawful decision is reviewed ex officio, the
application of discretionary powers being limited by the excess of power. It has
been shown that although procedural law is designated as one of the pillars of
Czech administrative law, criticism has been manifested on the administrative as
well as judicial practice that sometime excessively emphasized the procedural part
of the issue; theories arguing for a need of simplification have neglected the issue
of abuse of procedural rights especially in the field of land-use planning
decision-making or building procedure; however, there are a great number of
special laws in different fields (over one hundred), with specific rules on the matter
(Staša & Tomášek, 2012, pp. 63, 67, 68).
According to the Law on Administrative Procedure of Bosnia-Hertzegovina, a
lawful decision that has provided for a party, against which no appeal may be
lodged or an administrative procedure instigated, may be revoked, cancelled or
amended only in the cases provided by law. Detailed provisions establish
situations when the procedure completed by a decision that is final in the
administrative procedure may be reviewed (e.g. in case of new evidence, of
decisions taken on basis of false information or party’s allegations, of decisions
based on prior issues when the competent authority subsequently resolved that
issue in an essentially different manner, or in case the person who should have
participated in the capacity of a party was not given the possibility to participate in
the procedure without his fault – Sections 238 and 239). The review of the
administrative procedure may be conducted ex officio, at the request of an
interested party or of the Ombudsman acting within his responsibilities. A time
limit is set for requesting a review or conducting one ex officio. A valid decision
favorable to a party, may be cancelled if the authority considers that he substantive
law was incorrectly applied, only if the party agrees and no third party is
adversely affected (Section 254), except when cancelation is necessary for public
interest situations mentioned in Section 255, with the obligation to award
compensation to the party that has suffered damage. A valid unfavorable decision
may be revoked.
The ReNEUAL Model Rules provide the possibility of withdrawal for both
lawful and unlawful single-case decisions that adversely affect a party. The public
authority may withdraw an unlawful administrative decision which adversely
affects a party, ex officio or following a request of that party, with retroactive effect,
outside the time-limits for legal challenge (Section III-35). The same rules apply for
the withdrawal of a lawful administrative decision which adversely affects a party,
About three administrative procedure rules … 235
but with prospective effect. In both cases the public authority shall take into
account the effect of the rectification or withdrawal on other parties and on third
parties.
When a decision to withdraw an unlawful decision which is beneficial to a
party is considered, the public authority shall take into account the extent to which
a party has a legitimate expectation that the decision was lawful and the extent to
which the party has relied on it. In respect to these factors, the public authority will
decide whether it will exercise the power to withdraw the decision, the retroactive
or prospective effect of the withdrawal. The withdrawal may be exercised ex officio
or following a request of that party, outside the time-limits for legal challenge
(Section III-36).
The public authority may withdraw a lawful decision that is beneficial to a
party, ex officio, or following a request of another party. The power of withdrawal
in such a case may be exercised outside the time-limits for legal challenge only if it
is permitted by specific law, if the party has not complied with an obligation
specified in the decision or has not done so within the time-limit set for compliance
or in order to prevent serious harm. In the last case, upon application, the public
authority shall make good the disadvantage to the party affected, to the extent that
the reliance on the continued existence of the decision merits protection. The effect
of the withdrawal on other parties and third parties should also be considered. The
effect of the withdrawal of a lawful decision that is beneficial to a party shall be
retroactive only if it occurs within a reasonable time.
The conception of the Model Rules underlines that the possibility to withdraw
a decision calls for a balancing of the interest of the public with those of the
beneficiary, considering the extent to which the illegality that besets the decision is
obvious, whether the beneficiary had provoked the earlier decision through false
or incomplete information and the extent to which the beneficiaries undertook
irreversible investments because they relied on the decision (Anon., 2015, p. 93).
We conclude that in regulating the withdrawal/revocation of an
administrative act, a fair balance should be made between the principle of legality,
that is conducting the whole activity of the administration, and the principle of
stability of legal relationships shaped by the ECtHR, as for example in the case of
Pdurariu v. Romania. Even if it is possible to allow the public authorities to
reestablish legality without time limit, if the withdrawal of an individual decision
is severely impairing on the stability of legal relationships, in the absence of any
guilt of the beneficiary of the administrative decision, the withdrawal should not
be permitted.
5. Conclusions
Some of the rules for the procedure of issuing/adopting single-case decisions
impose certain steps presumed necessary in order to lead the public authority to a
correct conclusion. Other rules are meant for the protection of the beneficiaries of
236 ELENA-MIHAELA FODOR
the decisions and third parties. Although Acts and Codes establish such rules, if
they are omitted in the issuing/adopting process of a single-case decision, that will
not necessarily result in the possibility to dissolve the act. Interpretation of
administrative procedure rules in different legal systems take into account that
several principles have to be considered together with the principle of legality,
such as legal certainty and legitimate expectations. The prevalence of one of the
principles upon the others would be given in respect with the right or legal interest
that is breached by the decision and the observance of human rights.
Romanian rules of administrative procedure proved to get close to the ones
from other legal systems, in general. In the case of the rights of third parties that
might be adversely affected by decisions issued to another person, there is no rule
in the present to grant the third party the statute of party in the procedure, nor the
right to access the case files, but the Project of the Code of Administrative
procedure is willing to remedy this situation.
In the matter of the burden of proof, Romanian jurisprudence is consistent
with the one of the ECtHR and the provisions from other legal systems. Yet, the
privilege against self-incrimination is not recognized although most of the
European legal systems do. The Model Rules go further and mention the legal
professional privilege. Also, the impossibility to use proofs obtained with the
infringement of procedure rules, in order to apply a punitive sanction, also found
in the Model Rules, is very important for protecting one’s rights and is consistent
with the rights attached to the autonomous notion of ‘criminal charge’ of the
ECtHR.
Regarding the withdrawal of single-case decisions, Romanian doctrine and
jurisprudence is fairly consistent with the Model Rules, except for the fact that they
do not consider balancing the interests of the parties or the interest of a party with
a public interest, the legitimate expectations, the extent to which a party relied on
the decision, or if the withdrawal occurs within reasonable time. In the legal
systems where they are mentioned, such appreciations are at the discretion of
public authorities. On the one hand, they should be, as numerous single-case
decisions are issued/adopted and situations encountered are very different. On the
other hand, public servants must be qualified to make such appreciations and
willing to make them correctly, especially when the outcome may not be contested
to court. In respect with the possibility of curing formal defects of a single-case
decision, as long as the rules are presumed to set a fair balance between the rights
of the parties involved in the procedure, they should be obeyed. It is difficult to
appreciate if the conclusion would have been the same or different if a disregarded
rule would have been followed. This is why, in our opinion, the breach of
procedural rules should result in the illegality of the administrative decision.
Provisions that mention the sanction for breaching a specific rule would also bring
legal certainty, as both the public authority and the parties would know the
consequence of breaching a procedure rule and would be able to appreciate how
About three administrative procedure rules … 237
much can they rely on the administrative decision. Real life showed that at
different times and in different conditions the decisions may differ significantly
and this is why procedural requirements should be clear and should be fulfilled.
Principles like predictability of legal norms, the legitimate trust of citizens in the
administrative bodies, legal safety, proportionality were created and promoted by
the constant jurisprudence of the ECtHR and some were codified by the Treaty of
Lisbon (Trilescu, 2011, p. 108)
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