Procedural administrative law relation in general administrative proceedings

Abstract

The content and at the same time the essence of an administrative law relation, according to the accepted doctrine, are the consequent mutual rights and duties of parties to an administrative law relation. With the instituting of proceedings the procedural rights and duties of an administration authority towards parties begin to operate as do the procedural rights and duties of parties towards this administration authority. Prima facie it appears that administrative jurisdiction proceedings are characterized by a complete procedural law relation: both an administrative authority and a party have specific procedural rights and duties, unlike for example accusatorial/application proceedings, where the complainant has only rights and takes a more passive position. The present paper verifies this thesis in a negative way. In light of the regulations in force there are no grounds for treating any form of participation of a party in administrative jurisdiction proceedings as this party’s legal duty. This equally applies both to starting an evidentiary initiative and participation in presentation of evidence, and in making depositions by the party itself. It is necessary to especially exclude the possibility of applying any procedural rigors (financial penalties, coercive measures) to a party that does not actively participate in the proceedings. “Obligation” specified by administrative code provisions relating to the parties (e.g. in the case of summons to appear or participate in procedural acts) should not be interpreted as “necessity”, “duty”, or “compulsion”, but only as “a burden” or “task”. The regulation that provides for “obligation” does not obligate parties to any enforceable behavior. Because such a provision exists, a party should only take into consideration (accept) possible disadvantages that might affect it if it should fail to comply with such a provision. Therefore, while the rights of parties correspond to the theoretical law concept of rights, the duties of parties can, in most cases, be defined at best as sui generis duties. The only duty in the strict sense that is incumbent on parties in connection with the instituting of administrative proceedings is the duty to make statements and depositions accordant with the truth under threat of criminal liability (Article 75 § 2 and Article 86 in conjunction with Article 83 § 3, Code of Administrative Procedure).