Dr Maciej Kiełbowski

When an administrative case takes too long

Parties to administrative proceedings ask what can be done when the case drags on too long. There is no simple remedy, but a complaint against overlong proceedings is one option.

According to the rule in administrative proceedings in Poland, “Public administrative bodies should act in a matter thoroughly and expeditiously, using the simplest possible means to resolve the matter” (Administrative Procedure Code Art. 12 §1). The general rule of expeditious proceedings is clarified in further provisions of the code, particularly Art. 35 §§ 1 and 3, under which public administrative bodies should act in every case without undue delay, and matters requiring explanatory proceedings should be resolved within one month (or two months in particularly complicated cases). The one-month period also applies to administrative appeals.

As pointed out by commentators, this rule should be interpreted to mean that administrative cases should not only be resolved by the deadline provided in the code, but even more quickly if possible. So when may it be found that a matter is being carried out too long?

Overlong proceedings—meaning what?

Overlong proceedings, as governed by the Administrative Procedure Code, are a fairly recent concept, introduced in an amendment that went into force on 11 April 2011. The reason for the amendment was a loophole in the existing regulations: The code enabled citizens to file a complaint for administrative “inaction,” but not for delay as such. As pointed out by the drafters of the amendment, administrative authorities sometimes handled matters inefficiently, with measures spread out over time, or just going through the motions so that it would not appear that they were entirely inactive. Such practices had drawn criticism from the Supreme Administrative Court in Poland and from the European Court of Human Rights in Strasbourg.

Nonetheless, there is no statutory definition of “overlong proceedings.” As generally accepted, “Overlength of proceedings occurs when the body does not resolve the matter on a timely basis, while not being inactive, but the procedural measures taken by the body do not display the focus required by Administrative Procedure Code Art. 12, which establishes the rule of speedy proceedings, or the measures taken are superficial and not essential to resolve the merits of the matter. An administrative body may thus be said to conduct a matter in an overly lengthy manner when it may effectively be charged with failure to apply due diligence in an administrative matter organised so that the proceeding can be completed within a reasonable time, or charged with conducting measures (including evidentiary measures) irrelevant to the matter.” (Judgment of Province Administrative Court in Łódź of 7 March 2013, Case No. II SAB/Łd 2/12)

A manifestation of overlong proceedings could be successively extending the deadline for resolving the matter (Administrative Procedure Code Art. 36). It should also be pointed out that under Art. 11(7) of the Business Freedom Act, the deadline for consideration of an application filed by a business entity may be extended additionally only once, and the extension must not exceed two months.

Complaint as a remedy

If the party concludes that the proceeding is being carried out too long, the party may file a complaint as provided in Administrative Procedure Code Art. 37 §1.

When a complaint is filed, the matter will be considered by a higher authority to determine whether the case is truly being carried out too long.

If so, the higher authority will set a date by which the matter should be resolved, and conduct an inquiry into the reason for the delay (Art. 37 §2). This may lead to imposing official or disciplinary consequences on the persons conducting the matter improperly (Art. 38). Moreover, if it is found that failure to resolve the matter on a timely basis grossly violates the law, this may serve as grounds for financial liability under the Act on Financial Liability of Public Officials for Gross Violation of Law of 20 January 2011.

If not, the file will simply be sent back to the authority of first instance for further consideration of the matter. Nonetheless, if the administrative complaint is not upheld, the party may appeal to the administrative court, which will independently review the timeliness in which the matter is being handled. If the court upholds the complaint, it will order the authority to issue an act or interpretation, take action, or confirm or recognise a legal right or obligation, by a specific time. The court will also determine whether the inaction or delay occurred in gross violation of law.

Is it worth the trouble?

Advising to file a complaint against failure to resolve an administrative matter always carries a certain risk, which is tied to the construction of the complaint procedure.

When an administrative body receives such a complaint, it is required to forward it to the higher authority for consideration—along with the entire case file, because the complaint cannot be considered without also considering the nature of the matter itself, and a review of the file will be necessary to determine whether the matter has been handled in a timely fashion. In addition, consideration of the complaint always requires a certain amount of time, even though given the nature of such review it should be treated as a priority.

In consequence, filing of a complaint—particularly if it is not upheld—may cause further delay in resolving the matter, by a matter of days or weeks. Is it therefore the best instrument for speeding up the resolution of the matter? This question can be answered only on a case-by-case basis.

The regulations concerning such administrative complaints are not likely to change in the immediate future (there are no legislative proposals currently being considered in this area). One element lacking under the current rules, but called for by some legal commentators, is a requirement for administrative authorities to maintain an additional copy of the case file, so that the merits of the case could continue to be dealt with while a complaint was being considered at a higher level.

But the case law from the administrative courts is helpful in this respect. As pointed out by the Province Administrative Court in Poznań (judgment of 19 December 2012, Case No. IV SA/Po 1075/12), citing also previous rulings in this respect, “The absence of administrative files does not prevent consideration of the matter. It is the task of the administrative body to organise its work so that it is in possession of either the administrative file itself or a copy of the file, in case it is necessary to forward the file to another authority. Technology today is fully capable of smoothly and efficiently resolving this problem. Passively waiting for return of the file constitutes inaction.”

Consequently, the filing of a complaint against the lengthiness of the proceedings does not justify postponement of the consideration of the case to wait for a ruling on the complaint.

This approach by the administrative courts is laudable. Given the ability to prepare at least a scanned version of the case file, the argument that the matter cannot be resolved because the file is currently in the possession of the higher authority is unpersuasive. This approach also makes it easier for the party to decide to file a complaint against the overlength of the proceedings when the complaint does appear to be justified.

Maciej Kiełbowski, Dispute Resolution & Arbitration Practice, Wardyński & Partners