UDK: 342.9:343.155 1.02 Review article Dispositional Instruments of Protection against Administrative Acts (not in Legal Force) and their Effectiveness This Article resulted from specific research project of Masaryk University No. MUNI/A/0896/2012 "Effectiveness of Instruments of Protection against Administrative Acts which are not in Legal Force" Stanislav Kadecka stanislav.kadecka@law.muni.cz David Hejc david.hejc@law.muni.cz Klara Prokopova klara.prokopova@mail.muni.cz Jin Venclicek venclicek@mail.muni.cz Department of Administrative Studies and Administrative Law Masaryk University - Faculty of Law, Brno, Czech Republic ABSTRACT Public administration is often implemented through the issuing of public acts of a unilateral and binding character. Within public administration, however, legal instruments by which those for whom the administrative acts are binding can defend themselves against any illegality or irregularity of the mentioned administrative acts, are also (must be) provided. The existence and proper effectiveness of these legal instruments can be regarded as a necessary part (sine qua non) of the democratic rule of law. The paper is concerned with the so-called dispositional legal instruments of protection against the administrative acts which are not yet in legal force and their effectiveness. Article's major finding consists in fact, that the effectiveness of dispositional instruments of protection could be limited by absence of devolutive effect, or guarantee of independence in organizational arrangement between first and second instance administrative bodies. Key words: legal remedy, appeal, remonstrance, comments, objections JEL: K41 Kadečka, S., Hejč, D., Prokopova, K., & Vencliček, J. (2014). Dispositional Instrume nts of Protection against Administrative Acts (not in Legal Force) and their Effectiveness 99 Mednarodna revija za javno upravo, XII (2-3), 99-122 Stanislav Kadecka, David Hejc, Klara Prokopova, Jiff Venclicek 1 Foreword It is important to reflect the split of public administration (PA) into two basic branches: • Non-authoritarian (care) administration is performed in the same (private law) legal forms as private administration. The public authorities performing non-authoritarian administration are in the same, respectively equal, position as private individuals. • On the other hand, authoritarian administration is performed in typical forms of public law and its results are mainly acts of public authority, respectively administrative acts, which have a unilateral and binding character. This arrangement expresses the superiority of the administrative authorities over the addressees of these authoritarian acts. It is a typical manifestation of the authoritarian character of PA (Prucha, 2007, p. 60 and subsequent). It is the nature of "authoritarian" administrative acts that they interfere with the rights and duties of individuals independently of their own will (it is an unequal relationship). It is therefore essential to ensure the protection of individuals whenever these acts suffer from defects requiring their amendment or cancelation. Hence, PA (administrative law) offers (must offer) various means of protection to persons whose individual rights could be endangered through defective administrative acts. This paper deals only with those means of protection against "authoritarian" administrative acts that are at the exclusive, claimable disposal of their addressees. That is especially because precisely these means of protection and their standards are essential for the protection of individual rights and its effectiveness, which can be regarded as a necessary part (sine qua non) of the democratic rule of law. It is also important that those means of protection described above are constructed to correct defects in administrative acts before they come into force and before their enforceability. They can be submitted against issued administrative acts and, in some cases, against administrative acts before they are issued (against proposed content). The outlined means of protection in the legal order of the Czech Republic are called • appeals, • remonstrances, • objections and • comments and their application primarily depends on the concrete legal form of the (challenged) administrative act: • appeals and remonstrances against individual administrative acts; 100 International Public Administration Review, Vol. XII, No. 2-3, 2014 Dispositional Instruments of Protection against Administrative Acts (not in Legal Force) and their Effectiveness • objections and comments against hybrid administrative acts. The main goal of this paper is to analyse, individually and also through comparison, the outlined means of protection (of subjective public rights) and their effectiveness. This analysis is focused generally on these means and also specifically on their application by the PA section of State Monument Care (SMC) in the Czech Republic. The main reason for this is that there are significant disputes in this sector of PA between public interest in the protection of cultural heritage and the private interests of individuals, especially in terms of free disposal with their property. PA in the section on SMC causes significant and unilateral cases of interference in individual rights and duties. These cases, established through "authoritarian" administrative acts, can be extreme, particularly if they are directed against owners of real estate. For all these reasons section of SMC includes all mentioned means of protection and therefore it is ideal for highlighting our conclusions. The outlined means of protection play an important role in the protection of individual rights and it is necessary to ensure their operational capability and effectiveness. The article works with hypothesis that outlined means of protection lack principle of independence, which lower their effectiveness. For the verification of this hypothesis the empirical method and theoretical methods of description, analysis, synthesis and comparison have been used. 2 Appeal and / or Remonstrance Against Individual Administrative Acts No PA system can be considered perfect. It is therefore the task of the legislation to create, and of PA to apply, a sufficiently effective system of protection from administrative decisions that exceed the outlined limits. If such a failure in PA occurs, it is necessary to avoid or minimize any negative impacts on specific individuals and public interests as quickly as possible. 1 In practice, this assumes the existence of some sort of system that allows public bodies to be alerted to their errors, and that also imposes corresponding obligations. This task can be fulfilled in many ways and the Czech concept of appeal (remonstrance) is just one of them. 2.1 Appeal in Czech legislation and practice Appeal is a broadly applicable means of protection. It mainly targets the merits of a decision but, with certain exceptions, also procedural decisions. The Czech Administrative Procedure Code (APC) generally states that 1 If administrative protection does not lead to redress, appellant is usually entitled to bring a legal action to administrative court. However, exhaustion of remedies, which offers PA, is necessary condition for judicial review. Exhaustion of remedies is contrary to English legal system, rather absolute, than discretionary bar to the jurisdiction of administrative courts (BIBBY, 1995, p. 11). Mednarodna revija za javno upravo, letnik XII, štev. 2-3, 2014 101 Stanislav Kadecka, David Hejc, Klara Prokopova, Jiff Venclicek a participant may lodge an appeal against a decision except when otherwise provided by statute.2 It is evident that the conditions for appeal are not restrictive. However, the possibilities of appeal are limited by the fact that new proposals and evidence can be used in an appeal procedure only if they could not be applied in the first instance, without any fault of the appellant.3 Due to the principle of legal certainty, an appeal can only be submitted before a decision comes into force (this is why it is labelled an ordinary means of protection). Submitting an appeal has two major effects: • Suspensive effect means that a challenged administrative decision cannot acquire legal force or enforceability until the end of the appeal procedure. A person who defends himself against an administrative decision achieves short-term protection merely by submitting an appeal. At this moment, the public authority that issued the challenged decision can reconsider its opinions regarding whether it will comply with the opinion of the appellant in full. Such a possibility is particularly useful when the administrative body realizes that it made a mistake, meaning that it will not be necessary to carry out the appeal procedure. • Devolutive effect means that the appellate administrative authority is usually the immediate superior public authority to the one that issued the challenged administrative decision.4 It is important to highlight that an appeal reviews not only the legality of an administrative decision, but also the correctness of the discretion embodied in such a decision. This review can be conducted even beyond the objections expressed by the appellant, but in some cases it is only possible in cases concerning a public interest (Skulova, 2012, p. 249). One issue directly connected to research into effectiveness is the question of how an appellant public authority can deal with an appeal. We have to mention in particular the possibility of amending the original administrative decision (unless it is a decision by a self-governing entity). The appellant public authority can also revoke the original decision, return the whole case for new proceedings, and express a binding legal opinion. The question is whether this unduly prolongs the proceedings, especially if the case is returned more than once. Although such cases are probably rare, they cannot be excluded. Moreover, the appellant public body cannot change an administrative decision to the detriment of an appellant, unless there is another appellant with differing interests. 2 Section 81(1) Act No 500/2004 Coll., Administrative Procedure Code (of the Czech Republic). 3 This principle is inapplicable in proceedings imposing administrative punishments. Such an exemption is necessary because Czech PA deals with administrative proceedings, which mean criminal charges according to Article 6 of the European Convention on Human Rights. It is highly desirable to establish higher standards for this kind of proceedings, including the possibility to submit new evidence at any time. 4 Section 89 Act No 500/2004 Coll., APC. 102 International Public Administration Review, Vol. XII, No. 2-3, 2014 Dispositional Instruments of Protection against Administrative Acts (not in Legal Force) and their Effectiveness 2.2 Problems relating to appeal The outlined Czech appeal system presents some specific problems. Firstly, the Czech appeal authorities cannot be considered as independent or somehow semi-independent.5 There are many interconnections between the appellant public authority and public authorities of first instance, the existence of which is in many cases just an expression of the vertical deconcentration of state powers. Although this arrangement usually does not arouse any doubts in the Czech legal environment, there are significant differences in comparison to the common law approach to appeal tribunals (Morgan, 2012, p. 161). We assume that the independence of the appellate authority is one of the important factors that may affect the overall effectiveness of this means of protection. It cannot be considered as effective if the legal organization of the appellant system allows the exertion of any pressure from non-legitimate interests on the decision-making authority. We defined the efficiency of the appeal system according to the quickness and helpfulness of its protection to an individual's rights and public interests. Yet if the appellant authority is not independent, it is significantly harder to say that there is no prejudice, and even when only these questions arise, a smooth process cannot be presumed. In addition, the appellant process is not even remotely effective if there really is prejudice and illegitimate means of review, because it cannot lead to any intended solution. 6 Unfortunately, the Czech Constitutional Court refuses to acknowledge any deeper importance of public authorities' independence and states: "[...] for the decision-making process of public authorities it is logical to presume impartiality, not independence."7 We suppose that the lack of independence causes disruption in terms of equality of weapons, and public interests take precedence during decision-making at the expense of individuals' rights. We believe that the principle of two-instance proceedings is genuinely meaningful, but it has to be organised with proper care. It is obvious that the PA cannot be substituted by administrative courts, especially if there are some parts of administrative decisions that are outside judicial review. We asked regional Czech offices for information about appellant proceedings. We were able to collect relevant data from more than half of the respondents 5 In English legal system appeals to tribunals belong between mechanisms which permit individuals to pass their matters to independent third party (Elliot, 2011, p. 454). In Czech legal system appeal cannot be considered as one of these mechanisms, but there is access to judicial review and also ombudsmen, both with real guarantees of independence. 6 "Thus, in the planning field effective appeal procedures are essential if appellants and objectors are to feel that their case has been fairly considered." (Neil, 1988, p. 5) 7 Decision of the Czech Constitutional Court from 25/6/2009, No II. US 1062/08. Mednarodna revija za javno upravo, letnik XII, štev. 2-3, 2014 103 Stanislav Kadecka, David Hejc, Klara Prokopova, Jiff Venclicek in the area of cultural monument care, representing about 500 appeals.8 In approximately 38 % of cases the original decision was revoked and the proceedings were returned to first instance. In another 32 % the challenged administrative decision was fully confirmed. In less than 14 % of all cases the decision was changed by the appellate authority. In 6.5 % of all cases the decision was revoked and the proceedings halted. The other ways of dealing with appeals remained marginally represented (see Graph 1. Graph 1: Results of appeal proceedings Source: Data obtained upon request from regional offices of the Czech Republic. Unfortunately, we could not yet collect sufficient data that would allow meaningful comparisons of appeal with other Czech means of protection. There were only about 3 % of cases subject to appeal and afterwards also by review, which is one of the extraordinary Czech means of protection (see Graph 2). 10 % of these cases were revoked by review despite a previous appellant procedure (see Graph 3). However, we also found out that in these cases the appeals were dismissed because of their lateness or inadmissibility. There was only one case in which a public authority revoked its own decision despite it being previously confirmed in an appellant procedure. The authority did so after the complainant submitted an action to an administrative court. The number of submitted actions was very low, yet applicants were successful in fifty per cent of these cases. 8 Unfortunately, respondents were not able to provide data about the whole amount of first-instance decisions. We consider this fact as a significant problem of Czech public administration, which lowers possibility of outer control. These data are necessary for recognising share of challenged decision. Hence we were not able to research efficiency of appeal in this regard. But we were able to research effectiveness according to the manner of resolving appeal (the same applies to remonstrance in next chapter). 104 International Public Administration Review, Vol. XII, No. 2-3, 2014 Dispositional Instruments of Protection against Administrative Acts (not in Legal Force) and their Effectiveness Graph 2: Decisions challenged by review after appeal _3% M - Decisions challenged only by appeal 97% Decisions challenged by both review and appeal Source: Data obtained upon request from regional offices of the Czech Republic. Graph 3: Appeal vs. review 10% ■ Review confirmed result of appeal - Review did not confirm 90% result of appeal Source: Data obtained upon request from regional offices of the Czech Republic. The obtained data show the following conclusions: 1. Appellate administrative authorities confirmed first-instance decisions in about 32 % of all cases. 2. At the same time it was not shown that means of protection other than appeal provide significantly different results. 3. It was shown that if the appellant public authority reveals some failure it returns it for a new procedure twice as frequently as it changes it. Yet it has to be noted that appellate administrative authorities probably do not have the capacity to change all undesirable decisions. 4. According to the opinion of the appellant public authority, first-instance decisions are defective in almost 60 % of all challenged cases. 5. According to the opinion of administrative courts, second-instance decisions are defective in almost 50 % of all challenged cases. If the 50 % success rate for actions against administrative decisions was also confirmed in a larger sample of data, it would surely be a warning sign Mednarodna revija za javno upravo, letnik XII, štev. 2-3, 2014 105 Stanislav Kadecka, David Hejc, Klara Prokopova, Jiff Venclicek that the appeal system in the Czech Republic is not very efficient and produces a large amount of defective decisions. 2.3 Remonstrance in Czech legislation and practice A special means of protection against decisions by public authorities at the central level of state administration in the Czech legal environment is called remonstrance. It also can be applied against an administrative decision that is not in force and it has a suspensive effect, however it has some necessary specifics. The nature of the matter means that it is not possible to delegate the decisionmaking process about remonstrance to some higher authority, simply because there is none. It requires other solutions for many procedural questions, which are otherwise based on the devolutive effect. This is the main reason why Czech legislation distinguishes between appeals and remonstrances. Remonstrance is exclusively decided on by the head of the central authority that issued the challenged decision. This fact practically excludes the principle of two-instance proceedings at the central level of state administration.9 On the other hand, remonstrance proceedings include the obligatory consideration of the case in front of a remonstrance commission that should consist mostly of professionals not employed by the affected central public authority. The remonstrance method combines reconsideration and appeal. The Czech APC also expressly states that provisions about appeal should be proportionally used for remonstrance (Hendrych, 2012, p. 389). Proceedings in front of remonstrance should also be proportionally conducted according to the provisions of the APC on proceedings in front of a collegial authority, even if the remonstrance commission cannot be considered as an administrative authority in the true sense. The opinion of the remonstrance commission is not binding and is only a kind of recommendation for a head of a central administrative authority. A commission meeting can only be attended by its members and record keeper. According to law, practice establishes its own procedure and it became usual for a person with knowledge of the first-instance proceedings to refer to the members of the remonstrate commission, which starts its proceedings after this person leaves the room (Mates, 2007). Nevertheless, a non-binding opinion from the remonstrance commission is obligatory and it should primarily act by force of their arguments (Jemelka, 2013, p. 520). Whether the head of the central administrative authority decides to respect the opinion of the remonstrance commission or not, proper justification of the decision must be provided. The APC provides several ways for dealing with a submitted remonstrance, largely based on the application of provisions about appeal. However, 9 Decision of the Czech Supreme Administrative Court of 15/1/2001, No 6 A 1 1/2002. 106 International Public Administration Review, Vol. XII, No. 2-3, 2014 Dispositional Instruments of Protection against Administrative Acts (not in Legal Force) and their Effectiveness some possibilities are controversial, as is the power to return a case for new proceedings, because it is sometimes considered contrary to the sense of remonstrance. 2.4 Problems relating to remonstrance The first problem to point out is that the remonstrance commission cannot be considered independent even if it includes an element of professionalism. The appointment, but also recall, of individual members of this commission is the exclusive power of the head of the central administrative authority and can be performed without any significant restrictions. Therefore it is questionable to what extent the final opinion of the remonstrance commission reflects the true opinion of its members. Maintaining the independence of the remonstrance commission could be quite a difficult task. We appreciate the legislators' effort at professionalization. On the other hand, the Czech APC does not propose anything more than that the members of the commission should be "experts". Yet there is no mention about the specialization of these experts or any other interpretation regarding this provision, so the choice of the head of the public body can be quite broad. The main question asked is whether remonstrance could be considered a full means of protection. We believe that this is at least controversial without major requirements relating to the independence of the remonstrance commission. As mentioned above, administrative courts cannot substitute for PA, especially if their power to review "factual findings" is very limited. Although it is not possible to establish a clear boundary between the review of "factual findings" inside of discretion and between the legality of decisions, this only emphasizes the need for the effective investigation of administrative decisions by PA.10 It means that deficiencies in the area of review by PA cannot be ignored just because there are still administrative courts present (Macur, 1992, p. 50). It is obvious that two-instance administrative proceedings are of significant importance. However, the Czech Constitutional Court has the following opinion: "[...] the absence of a two-level procedure is not in and of itself unconstitutional [...]."" 10 Czech approach to importance of dividing matters of law and facts is to some extent similar with English approach. (Griffith, 1973, p. 146) We also believe that PA bodies are usually more appropriate for dealing with factual findings than courts. However, Czech PA system did not develop organized system of some administrative tribunals, which could combine independence and fast, cheap, informal and expert mass administrative justice. (Craig, 2012, p. 231) In Czech constitutional system it is not possible to establish fully independent administrative appeal tribunals. Similar tribunals could be established as a part of executive, but not a part of PA. It means that in Czech legal system these tribunals cannot be named as „administrative". Potential establishment of these tribunals outside PA would cause double-tracking, which is criticised by some Czech (or Slovak) legal scientist. 11 Decision of the Czech Constitutional Court from 26/4/2005, No Pl. US 21/04. Mednarodna revija za javno upravo, letnik XII, štev. 2-3, 2014 107 Stanislav Kadecka, David Hejc, Klara Prokopova, Jiff Venclicek For the purposes of our research we asked the Czech Ministry of Culture to provide information about remonstrance proceedings in some areas of cultural monument care. The obtained data show that remonstrances were applied against 1.3 % of more than eight thousand administrative decisions issued by the Ministry of Culture. The Ministry of Culture resolved 36 % of all applied remonstrances through reconsideration. The second instance confirmed the decision of the first instance in 44 % of aH remonstrance proceedings. Graph 4: Results of remonstrance proceedings 50% 45% 40% 35% 30% 25% 20% 15% 10% 5% 0% 44,0% 11 7