Ombudsman to the Ministry of the Interior Affairs and Administration: On oral orders to be carried out immediately.
The "anti-crisis shield 2.0" includes administrative law solutions that are unfavorable for citizens. The Ombudsman's reservations concern in particular the regulations regarding the following issues.
Orders issued by public authorities to public and private entities - within the systemic context
Pursuant to the new provisions, orders issued by authorities dealing with counteracting COVID-19 are subject to immediate execution on the day of their delivery or announcement and do not require justification.
In the aforementioned provision, the legislator used the general clause in connection with counteracting COVID-19, which means that state administration bodies have a high degree of discretion in issuing instructions, which may also be directed to private entities (e.g. entrepreneurs). The Act does not contain precise conditions for issuing the order and excludes the obligation to justify the decision, which may lead to arbitrary interference with the constitutional rights of citizens, such as freedom, freedom of movement or property.
"The Anticrisis shield" also allows the authorities to issue orders "verbally, in the form of a written annotation, by phone, by means of electronic communication or by other means of communication. The essential circumstances of such settlement should be recorded in the form of a protocol. "This allows the government to depart from the rule of doing the matter in writing. Meanwhile, the written form protects the citizen - he or she can always show what exactly was transmitted to him (the protocol will only describe how the information was understood by the official).
Given the extraordinary situation caused by the outbreak of the coronavirus epidemic, the oral or telephone form of announcing the decision containing the order directed to the private entity should be allowed, but only in the event of sudden and unforeseen events or circumstances, when the order is necessary to save the health or life of citizens at risk or to protect state property against heavy losses.
As for the justifications of the decisions issued, they should be prepared in each case provided for in the provisions of the Code of Administrative Procedure. Assuming that it may be necessary to issue the decision without delay for the reasons indicated above, and the preparation of the justification could delay taking the required actions, the justification should be prepared at least retroactively ( e.g. in the event of an appeal) to allow for judicial and administrative control.
"Shield" also endowed the Minister of Health with the power to issue orders ("The minister competent for health may, on his own initiative or at the request of a voivode, issue binding orders on entities other than those mentioned in item 1, in particular legal persons and organizational units without legal personality and entrepreneurs"). Previously, only the Prime Minister had such powers.
There are no mechanisms in the Act to inhibit the arbitrariness of issuing orders and to allow any dissent with respect to these orders (which is compounded by the immediate execution clause of the orders and the lack of the need to justify them - which will clearly hinder the presentation of the argumentation used to challenge the order).
Currently, three bodies - the voivode, the minister of health and the Prime Minister - have been empowered to impose arbitrary obligations on both public and private entities, even on the same subject - the provision (in the current and planned wording) does not specify for this. In this way, many intersecting and overlapping and even mutually exclusive commands can be issued, all legally binding. This will contribute to the deepening of legal uncertainty already existing during the state of the epidemic.
Orders issued by public authorities to public and private entities in the field of waste management
Art. 11a of the Act on COVID-19 was updated with para. 9, which specifies as follows: The instruction referred to in para. 1 may also apply to the storage of medical waste by its producer.
Medical waste is divided into infectious and ordinary. The draft provision does not specify which waste is meant. Since the Act applies to COVID-19, most likely the legislator was dealing with infectious medical waste. However, this should be clearly indicated in the legislation. Storage of such waste is associated with higher technical standards. The order to store medical waste by the producer - i.e. primarily by hospitals - may not be feasible if so far these units were at most prepared for "pre-storage" in connection with collecting waste on an ongoing basis.
Suspension of time limits in administrative proceedings
The Act adds to art. 15zzs of the COVID-19 Act, the provisions of para. 2a, 3a and changes the wording of para. 4 and 9. The amendments consist in introducing exceptions to the principle of "freezing" the dates (withholding the start date of the procedural deadline or the procedure’s suspension), adopted in accordance with the provisions of Art. 15zzr and 15zzs of the COVID-19 Act.
However, while the provision of art. 15zzr of this Act enumerates the types of administrative terms subject to "freezing", the provision of Art. 15 zzs, which provides for procedural deadlines - also in administrative cases - does not. This provision does not specify which procedural deadlines do not start or are to be suspended.
In view of various proposals for the interpretation of the term 'procedural deadline' in the doctrine, there is a doubt as to whether all deadlines are involved - for the institutions to settle the matter and for the parties to the proceedings to perform certain actions, or only for the institutions.
To dispel this doubt, it is necessary to refer to the systemic interpretation. And yes, the wording of the adopted para. 2a and 3a and 8a suggests that art. 15 zzs is to apply to all deadlines - because it excludes from suspension those provided for institutions in given categories of cases. However, the lack of clarification of this issue in paragraph 1 article 15zzs introduces a state of uncertainty in the context of procedural guarantees for citizens, which is unacceptable. For the legal certainty of citizens, the legislator should clearly indicate whether, irrespective of the actions of the authorities, the time limits for parties / participants in proceedings are stopped or suspended.
The current wording of Art. 15 zzs. 4 of the COVID-19 Act as follows: During the period referred to in para. 1, the authority, court or entity conducting the proceedings or control, as appropriate, may set a deadline for the party to act or order the time limit specified by statute with the possibility of specifying it for a longer period than provided for by statute, if required by the public interest or the important interest of the party or the controlled entity. A party, a participant in the proceedings, the controlled entity and their contractor, as well as the body which was asked to take a position pursuant to art. 106 of the Act of 14 June 1960 - the Code of Administrative Procedure, they are obliged to perform actions within the prescribed period, and in the event of ordering the passage of the deadline, there are effects that the Act binds with the expiry of the deadline.
It is indisputably necessary to clarify the legal consequences of failure to comply with the abovementioned activities by the parties involved. Completing the action requested by the authority may not be possible for the party during the epidemic. Meanwhile, the Code of Administrative Procedure provides for coercive measures (fine - Article 88 of the Code of Administrative Procedure, which may also be imposed on the party in some cases) or leave the application without consideration (Article 64 of the Code of Administrative Procedure) - from which no appeal is available. It should be noted that in the light of art. 15 zzs. 10 and 11 of the COVID-19 Act, a complaint of inaction may be ruled out. Such a state of affairs threatens to flagrantly violate the rights of the parties in administrative proceedings.
The amendment also includes a change in the wording of paragraph 9 art. 15 of the Act on COVID-19. It consists of removing the refund by default and adding a fragment or decision in matters referred to in paragraph. 3a. As a result, paragraph 9 reads as follows: During the period referred to in paragraph 1, the authority or entity may issue, as appropriate, a decision fully accepting the request of a party or a participant in the proceedings, a certificate stating that there are no grounds to object, express a position or issue an individual interpretation or decision in cases, referred to in paragraph 3a.
The removal of a refund by default should be assessed positively, as such a solution raises a lot of doubts, and hence leads to discrepancies in the interpretation made by public administration in determining when we deal with ex officio activities (does it refer to the way of initiating proceedings? whether the body's activities under proceedings already underway).
However, there is still a problem with establishing the understanding of the "request of a party", which already has and will have a negative impact on the practice of adjudication by the authorities. It is necessary to specify whether it concerns the authority's course of action in the settlement of the case - that is, to issue a decision on the subject covered by the application of the party; or about the specifically expressed will of the party as to how to settle the matter - i.e. to issue a decision on the content indicated by the party. Using the example - in the first case, granting the request of the party requesting a cash benefit (e.g. in the field of social assistance) will consist of issuing a decision to grant a cash benefit in the amount set by the authority, and in the second case - providing a cash benefit in the amount expected by the party.
In addition, the provision does not indicate whether the act of granting the request concerns all parties or only the addressee of the decision. It is not specified whether it relates to cases involving one party or multiple parties. The same applies to participants. Administrative procedure does not allow for a mechanism that takes into account the position of only one party In cases involving many parties / participants with conflicting interests, granting the request of only one party will also constitute a flagrant violation of the principle of equal treatment in administrative proceedings. This provision therefore requires urgent improvement. I recommend adding to its content: (...) in the absence of opposition from other parties or participants in the proceedings.
The Ombudsman is aware that the development of the special act must be characterized by haste, which results in errors or inaccuracies in the new regulations. However, he considers it all the more urgent and necessary to pay attention to those areas that need improvement. This will help avoid many problems that, I am afraid, will arise from the application of these provisions.
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