ADMINISTRATIVE APPEALS IN LATVIA:
ASSESSMENT OF ADMINISTRATIVE APPEALS MECHANISMS IN MINISTRIES AND SUBORDINATE
INSTITUTIONS
Report to the Ministry of Justice by Sanda Putnina and Malcolm Russell-Einhorn
January 2004
TABLE OF CONTENTS
LIST OF TABLES IN THE TEXT ... 4
LIST OF FIGURES IN THE TEXT ... 5
ACRONYMS ... 5
EXECUTIVE SUMMARY ... 6
A. INTRODUCTION... 11
B. CREATING AN EFFECTIVE LEGAL AND POLICY FRAMEWORK FOR ADMINISTRATIVE APPEALS IN LATVIA ... 15
C. SUBSTANTIVE AND PROCEDURAL REQUIREMENTS GOVERNING THE HANDLING OF ADMINISTRATIVE APPEALS UNDER THE APL... 18
1. Key Requirements Governing Appeals Under the APL ... 18
a) Substantive Provisions/Principles... 19
b) Procedural Provisions/Principles ... 20
2. Legal and Policy Implications... 22
a) Legal Implications ... 22
b) Policy and Program Implications... 24
D. SURVEY RESULTS AND ANALYSIS ... 26
1. Methodology and Information Gathering ... 26
2. Types and Volume of Administrative Acts Issued by the Administration .... 27
a) Types of Administrative Acts ... 28
b) Total Volume of Administrative Acts and Administrative Recordkeeping... 30
3. Current and Anticipated Levels and Avenues of Appeal Within the Administration ... 34
a) The Current Legal Framework... 35
b) What the APL Portends ... 35
c) Addressing the Issue of Multiple :Levels of Appeal ... 37
d) The Potential Role of Ministries in the Appeals Process... 40
e) Suggestions for APL Interpretation and Implementation with Respect to Avenues and Levels of Appeal ... 43
4. Volume of Appeals and Recordkeeping on Appeals... 46
5. Current and Anticipated Internal Organization and Processes for Handling
Appeals Within the Administration ... 49
6. Systemic Reviews of Appeals Practices in Public Institutions ... 55
7. Current and Anticipated Training and Other Preparation of Public Servants to Understand and Handle Administrative Appeals... 58
8. Communication with the Public on Administrative Appeals ... 60
9. Systems for Exchange of Information Between Public Institutions... 61
10. Assessment of Resource Needs and Actions Planned for Implementation of the APL ... 62
E. CONCLUSIONS AND RECOMMENDATIONS ... 64
F. ANNEXES... 75
1. Survey instrument for ministries and subordinate institutions... 75
2. List of the completed questionnaires... 75
3. Completed questionnaires (in Latvian and as available in English) ... 75
4. Sample instructions and by-laws on the operation of appeals commissions, review of complaints and appeals ... 75
5. Annex Table 1. Types and volumes of administrative acts issued by the Administration. ... 75
6. Annex Table 2. Levels of Pre-court Appeal Indicated by Subordinate Institutions for Appeals From Their Administrative Acts Currently and After the Introduction of The APL... 75
7. Annex Table 3. Institutions Indicating More Than One Level of Pre-Court Appeal for Appeals From Their Administrative Acts Currently and After the Introduction of The APL... 75
8. Annex Table 4. Role of the Ministries in Reviewing Appeals of Administrative Acts Issued by Their Subordinate Institutions. ... 75
9. Annex Table 5. Differences in Views of the Subordinate Institutions and Their Respective Ministries... 75
10. Annex Table 6. Statistics on Appeals by Ministries and by Institutions ... 75 11. Annex Table 7. Use of Standardized Forms for Issuance of Administrative Acts. 75
12. Annex Table 8. Does the Ministry/Institution Conduct Systemic Reviews or Analysis of Appealed Administrative Acts? ... 75 13. Annex Table 9. Number of Civil Servants and Employees Who Have Received Some Training in the APL (data for Ministries and their subordinate institutions). ... 75 14. Annex Table 10. Major concerns as regards the interpretation and
implementation of the APL indicated by ministries and subordniate institutions (in Latvian only). ... 75
LIST OF TABLES IN THE TEXT
Table D-1. Institutions with the Fullest Accounting of the Types of Administrative Acts Issued ... 28 Table D-2. Examples of Institutions with Few Indicated Types of Issued Administrative
Acts ... 29 Table D-3. Types and Volume of Administrative Acts issued by the State Social
Insurance Agency... 30 Table D-4. Institutions with Incomplete Records or No Records on the Volume of Issued
Administrative Acts ... 33 Table D-5. Examples of Institutions Indicating More Than One Level of Pre-Court
Appeal for Appeals From Their Administrative Acts – Currently and After the Introduction of The APL... 38 Table D-6. Role of The Ministries in Reviewing Appeals of Administrative Acts Issued
by Their Subordinate Institutions... 40 Table D-7. Are the Appeals of Administrative Acts Issued by this Institution Reviewed
by the Ministry? Differences in Views of Subordinate Institutions and Their
Respective Ministries... 41 Table D-8. Number of Reported Appeals of Administrative Acts in Institutions Having
the Largest Number of Such Appeals ... 48 Table D-9. Institutions Having Special Organizational Arrangements to Review All or
Part of Appealed Administrative Acts. ... 49 Table D-10. Institutions Reporting the Existence of Some Form(s) of Internal Guidance
for Handling Appeals... 52 Table D-11. Standardized Forms for Issuance of Administrative Acts (total for
subordinate institutions of each of the ministries). ... 53
LIST OF FIGURES IN THE TEXT
Figure D-1. Volume of Administrative Acts Issued by Subordinate Institutions of
Ministries for the Last Three Years ... 31 Figure D-2. Volume of Administrative Acts Issued by the 17 Latvian Agencies Whose
Acts Represent 99% of All of the Administrative Acts Reported Through the
Questionnaire ... 32 Figure D-3. Avenues for Pre-court Appeal and Relevant Institutions (APL, Secs. 76(2)
and Article 77) ... 36 Figure D-4. Percent of Civil Servants and Employees Who Have Received Some
Training in the APL (data for Ministries and their subordinate institutions). ... 59 Figure D-5. Ways of Informing Citizens About Their Administrative Procedural Rights,
Including Their Rights of Appeal (by numbers of responding institutions; multiple answers possible) ... 60 Figure D-6. Types of Arrangements Planned for Implementation of the Provisions of
APL Article 59.2 (by numbers of responding institutions; respondents asked to check all answers that apply) ... 62 Figure D-7. Numbers of Institutions Reporting That They Have Conducted an
Assessment of Resource Needs for Implementation of the APL (as of October 2003) ... 63
ACRONYMS
APL Administrative Procedure Law CM Cabinet of Ministers
Sec. Section
SPA School of Public Administration
EXECUTIVE SUMMARY
The Latvian Administrative Procedure Law (APL) represents a significant advance toward an administrative procedure framework consistent with modern European democratic principles and the rule of law. Standards set out in the new Latvian APL requiring openness, hearings, the gathering of evidence, the giving of reasons, and the provision of recourse can be seen as ways of improving the quality of governance. The overall thrust of the law is to promote greater legal certainty and regularity in the administrative process and allow the private citizen or organization a meaningful opportunity to challenge adverse administrative decisions on an equal footing with state authorities – first through an internal appeal, and if necessary thereafter, through judicial review. .
Although the state administration in many countries is not viewed as having the capacity to review its own decisions effectively and dispassionately, even if administrative appeals are taken to a higher institution or a special administrative tribunal, the principal
attributes of a quality internal review process are well understood. A good system of administrative appeals or internal review is one that functions transparently and affords a quick, inexpensive, and independent review of primary administrative decisions or acts.
Internal review consists of a substantive and often procedural review of such decisions, and is undertaken by either one or more officers within the same agency (usually more senior officers), or an officer or panel within a specially designated or hierarchically superior institution, or both. Internal review can take a number of forms and an agency may have more than one system of internal review mandated by special legal norms. In any event, a functioning system of administrative appeals benefits both applicants and agencies. Its aim should be to encourage better primary decision making by agencies and delivery of a cost-effective and time-efficient review process to applicants.
This report analyzes this particular aspect of administrative procedure within the Latvian public administration – administrative appeals (or internal review) mechanisms in
ministries and subordinate institutions, and how these comply with both the standards set out in the APL and fundamental elements of a well-run internal review system as
reflected by comparative experience. The report also seeks to highlight options for the government in terms of legal and policy changes that could significantly improve the practical operation of internal review wthin Latvian administrative bodies over the next several years. The report’s findings and conclusions are based principally on a
questionnaire on various administrative appeals topics that was completed by 15 out of 17 ministries and 83 out of an estimated 95 subordinate institutions.
Fundamentals of a Good Administrative Appeals System
Latvian administrative authorities must come to understand well the requirements of the APL governing the issuance of administrative acts and the handling of appeals. The next step is combining this understanding of the legal requirements with management
practices that result in a smoothly functioning system of administrative appeals. The key features and elements of such a well-run system of administrative appeals, as presented
throughout the report and used as benchmarks for the Latvian practices, include the following:
• Consideration of administrative appeals by reviewing officials is informed by applicable substantive and procedural principles consistent with a democratic constitutional state;
• Citizens can bring an administrative appeal to a higher administrative institution – an appropriate independent decisionmaker either within the agency issuing the primary decision or within a superior agency – where proper technical expertise is applied, including, if possible, broader technical, social, and/or economic perspectives than those that may have informed the original administrative decision;
• Administrative appeals are handled by well-trained, knowledgeable, intelligible, and polite civil servants;
• Such appeals are handled efficiently and transparently, using appropriate forms, internal processes, and information management tools;
• Citizens and NGOs are provided with adequate information with which to understand the basic operation of the law and essential citizen rights thereunder;
and
• An information and monitoring capability is established within and/or outside the government that can provide administrative bodies and the Cabinet of Ministers with useful guidance and resources about the law and its implementation while also effectively benchmarking implementation.
Key observations and issues
Legal issues. There is widespread confusion about the application of the APL, especially given its uncertain interaction with a number of special legal norms found in existing legislation and the fact that certain fundamental processes may not change from the current practice under Council of Ministers Regulation No. 154. More specifically, the following key issues of application and interpretation of the APL’s provisions are identified in the report:
• The issue of the levels and avenues for appeal under the new APL and what specific changes are required from the current practice is extremely convoluted due to the following:
o Lack of clear definition and explicit requirements for what constitutes a
“higher institution” for purposes of administrative appeals
o Determining whether and in which cases multiple administrative appeals levels may be permitted (under special legal norms) or required.
o Lack of provisions for ensuring independence of the person(s) hearing the appeal.
• Interaction of the APL with special legal norms generally and the extent to which those govern certain aspects of the administrative appeals process.
• Lack of clear and detailed guidance on exactly how administrative
decisionmakers (both primary decisionmakers and internal appeals reviewers) should ensure that the views of the citizen are heard in different contexts (e.g., regulatory action, application for a license or permit, revocation of the same).
Organizational, management and human resource issues. Overall, the responses of Latvian public institutions to the questionnaire reveal a range of profound systemic issues affecting administrative appeals. The level of formalization of appeals or complaints management systems across the government is very weak. Analyzing the responses and additional comments provided by the institutions clearly indicates that ad hoc processes predominate: officials in many institutions typically decide how to handle an appeal once it has arrived, without reference to procedural protocols or established substantive
guidelines or written precedent. Purposefully designed processes with some internal regulations, guidelines, and clearly specified duties and obligations for the individuals reviewing the appeals appear to exist only in a very few institutions.
More specifically the following shortcomings characterizing the state of affairs with the administrative appeals are identified and discussed in the report:
• Many subordinate institutions issuing administrative acts face problems in clearly identifying and designating the entire spectrum of administrative acts they issue, including those actions equivalent to decisions that constitute “actual conduct”
under the APL.
• While some statistics on the volume of primary administrative decisions (acts) are kept by most of the institutions, statistics on appealed administrative acts and their outcomes are typically incomplete and in many cases not kept at all.
• A significant share of subordinate institutions (38 out of 83) report having more than one level of pre-court appeals of their administrative acts, but have not analyzed critically the impact of such arrangements on efficiency and fairness.
• The number of people trained in the basics of the new APL remains relatively small across the government. Approximately 7% of all civil servants and
employees of agencies issuing administrative acts have reportedly received some training. There are indications that practical access to and utilization of the courses offered by the School of Public Administration is uneven among the public administration institutions.
• Latvian public institutions do not appear to be proactive in looking at their appeals processes systematically through some kind of management review, e.g., analyzing the possible volume and flow of appeals, designing and modeling the specific avenues and internal workflow of various types of appeals, describing what kinds of communications and cooperation may be needed from other institutions having relevant information and records, prescribing how and by whom certain kinds of appeals will be handled and decisions issued, and how appeals records will be kept. This prevents the agencies from managing resources wisely and delivering quality services to the public.
All of the above are the issues that will have to be confronted if the public administration is to effectively implement the APL.
Key Recommendations
The report contains a number of detailed recommendations and suggestions designed to move Latvian administrative appeals practices into closer alignment with good practice
elsewhere. Individual ministries and agencies should review these and identify which ones make sense based on their specific needs. However, in order to surface these views and ensure proper organization of, and motivation for, government-wide APL
implementation initiatives having a fundamental degree of consistency, an inter- ministerial steering committee on implementation should be established under the leadership of the Chancellery. The committee should not only reach consensus on general implementation steps over the next three years, but agree on a general APL state administration communications strategy that each ministry and subordinate institution can rely on for general guidance in addressing both its own civil servants and the public.
The main programmatic steps for APL implementation recommended by this report are the following:
1. Recommendation No. 1. All public institutions should be required to catalogue and maintain pertinent information about the types of administrative acts they issue.
2. Recommendation No. 2. All public institutions should be required to maintain and publish information about types, volumes, and outcomes of appeals.
3. Recommendation No. 3. The government should consider amending the APL at a relatively early date to address a number of key issues, including amplification of the citizen’s right to be heard, clarification of the definition of a “higher institution,” and clearer specification of one level of appeal – to a special appeals unit within a subordinate institution – as the norm.
4. Recommendation No. 4. Agency legal staff should conduct a thorough legal analysis of special institutional norms to determine points of conflict or overlap with the APL.
5. Recommendation No. 5. The government should require each ministry to conduct an internal review of its own systems and procedures for handling appeals as well as require each ministry to demand the same of each of its subordinate institutions, for the purpose of developing a three-year plan for implementing the APL and appropriate management systems.
6. Recommendation No. 6. As part of the three-year implementation plans, the government should specifically require all ministries and subordinate institutions to initiate, and report to the Cabinet of Ministers about, annual systemic/management reviews on appeals handling.
7. Recommendation No. 7. As part of the three-year implementation plans, the government should also require each ministry to conduct an internal study to determine what kinds of appeals handling units make the most sense for each of its subordinate institutions, and to integrate such designs into such plans.
8. Recommendation No. 8. Based on initial work on the three-year implementation plans, ministries and their subordinate institutions should be required to review and revise as necessary, based on new needs and routines, all relevant internal guidelines and forms used in appeals handling.
9. Recommendation No. 9. As part of the three-year implementation plans, each ministry and subordinate institution should be required to translate essential information about its guidelines and procedures into accessible brochures, leaflets, placards, and other formats for the use of the public.
10. Recommendation No. 10. Either through the School of Public Administration or independently, priority instruction on the APL should be provided to a special cadre of ministry and/or subordinate institution staff through a training-of-trainers methodology.
11. Recommendation No. 11. Each ministry and subordinate institution should be required to develop specific training goals and plans relative to APL implementation and appeals handling generally.
Checklist of Key Administrative Appeal Process Elements and Institutional Prerequisites In addition to the above recommendations, the institutions issuing administrative acts and those serving as appeals instance might want review the checklist of key administrative appeal process elements (see below). Reviewing the issues raised in the checklist will help each individual institution to assess the organizational and basic procedural preparedness for the application of the APL.
World Bank Project “Implementation of Laws Governing Administrative Procedures and Information Openness.” Component 2: Development of Appeal Mechanisms Within Ministries. 10
CHECKLIST OF KEY ADMINISTRATIVE APPEAL PROCESS ELEMENTS AND INSTITUTIONAL PREREQUISITES Forms r recording ppeals ple nnex 4) Minimu ents r appeal plication which adm. is d hat is d optional – otives for
•Internal guidelines identify the reviewing institution for each of the adm. acts •Clear procedures and responsibilities for transmitting the appeal and case file to the reviewing institution (Sec. 77) •Requiremen t to enter the appeal in an appeals register for purposes of statistics and further analysis •Requirements and procedures are explained to staff
•Identify if this (Sec. 80) applies to the appealed adm. acts of this institution •If acts are suspended – may need to notify the enforcement officers and update internal information systems •If acts not suspended – include such information in the original adm. act
•Internal guidelines specify all adm. acts appealed to this reviewing institution •Note the terms: institution has 30 days to review the appeal (from the date the appeal was received in the issuing institution); extension according to Sec. 64) •Requireme nts and procedures are explained to staff
•The procedure, requirements and standards of conduct specified in internal guidelines •Key issues: independenc e, objectivity, competence • Internal control mechanism over the fulfillment of above requirements and Sec. 37
•Review the case on merits (Sec. 81) •Applying the substantive principles •Observing the procedural principles Key issues for internal guidelines: •Explaining considerations of usefulness to staff on the basis of pertinent examples (Sec. 66) •Procedures for carrying out the right to get acquainted with the case and right to hearing (Sec. 61, 62) •Procedures for timely requests of information from other state bodies (sec. 55)
•Form and elements of decisions on appeals (Sec. 67, 81, 74) •Ensure knowledge management in the institution (enable access to previous decisions in similar cases, track results of previous appeals to court, channel information to the issuing institution)
•Sending decision to the appellant. In case of negative decision – as registered mail (Sec. 70.2) and archive these for proof •Sending decisions to other parties – 3d persons, etc. •Sending decision to the issuing institution •Be able to track whom the decision was sent to and when
•Ens registeri and kee statistics o all appeals by type adm. act, topic, issuing institu outco •Yearly analysis of appeale acts •Inde nt reviews appeals process handl every 23 years
bmitting an appeal Institution has 7 days to send appeal to reviewing institution
Applicati on of adm. act suspended , unless other provisions in special norms
Receiving appeal in the higher institution
Designati ng reviewing officer (unit)
Reviewing the appeal Preparing decision on appeal Issuing decision on appeal
Record - keepi and analysis
A. INTRODUCTION
Among the various purposes of administrative law and administrative procedure, two stand out as especially important. One purpose is to assist administrative institutions in carrying out the tasks set by government, thus ensuring efficiency. The other is to ensure that people who are affected by the actions and decisions of administrative institutions are treated properly and fairly. A democratic administrative law framework permits citizens to appeal adverse administrative decisions to a court or other independent body1. Administrative law and procedure not only establish the legal parameters within which public authorities should act, but also contribute to the quality of decision-making.
Standards set out in the new Latvian Administrative Procedure Law (APL) requiring openness, hearings, the gathering of evidence, the giving of reasons, and the provision of recourse can be seen as ways of improving the quality of governance. The question now facing the public administration in Latvia is how best to operationalize these concepts and principles and ensure their effective implementation.
Providing the citizen with adequate means of challenging administrative decisions lies at the heart of an effective administrative procedure system. Typically, there are three main avenues of formal recourse for citizens mounting such a cahllenge: internal review by the administrative authorities (administrative appeal), ombudsman review, and judicial review. Each may result in an effective remedy for the citizen, although the ombudsman can only state an opinion or recommendation rather than directly order a result. In some countries, immediate appeal to the courts is permitted. In most countries, however, appeals of administrative decisions may or must be first taken to a competent authority within the administration. Latvia, in its new APL, has with limited exceptions chosen to require citizens first to appeal administrative decisions to a ‘higher institution’ within the administration2; only thereafter may a court appeal be taken. This is generally consistent not only with current practice under Cabinet of Ministers Regulation No. 154, but with the notion that the administration should have an opportunity to correct potential mistakes while simultaneously reducing the potential burden on the courts and litigants. The present report analyzes exactly this aspect of administrative procedure within the Latvian public administration – administrative appeals (or internal review) mechanisms in
ministries and subordinate institutions.
A good system of administrative appeals or internal review is one that functions transparently and affords a quick, inexpensive,and independent review of decisions.
Internal review is a process of substantive review of an agency’s primary decision and is undertaken by one or more officers within the same agency, usually a more senior officer, or an officer or panel within a specially designated or hierarchically higher institution, or both. Internal review can take a number of forms and an agency may have more than one system of internal review mandated by special legal norms. In any event, a functioning system of administrative appeals benefits both applicants and agencies. Its aim should be
1 This principle is enshrined in Resolution 80(2) of the Council of Europe (Principle 9).
2 APL, sec. 76(2)
to encourage better primary decision making by agencies and delivery of a cost-effective and time-efficient review process to applicants.
As the Latvian Government seeks to prepare itself to conform to the provisions of the APL after it goes into effect on February 1, 2004, it is critical for the Cabinet of Ministers and the Ministry of Justice, charged with guiding the implementation effort, to
understand the extent to which the country’s ministries and subordinate institutions are ready to assume the responsibilities placed on them by the new law—whether they are, in fact, capable of serving as a meaningful first avenue of appeal from most administrative decisions in terms of efficiency and fairness.
As part of a larger collection of analyses and training initiatives designed to support effective implementation of the APL, this report seeks to assess generally this level of preparedness. It also seeks to highlight options for the government in terms of legal and policy changes that could significantly improve the practical operation of the law within Latvian administrative bodies over the next several years. The aims of this report, as defined at the outset by the Ministry of Justice and the World Bank,3 were to:
• identify and analyze current mechanisms for administrative appeals within Latvian ministries and their subordinate institutions.
• examine the extent to which the internal review systems being used by
subordinate agencies satisfy fundamental principles of administrative law set forth by the Council of Europe and assess the current mechanisms and organizational arrangements in light of the provisions of the APL.
• develop good practice guidelines, which will be useful to all government agencies in examining their own practices of internal review, in part by drawing on information and experience in other countries; and
• enable ministries to determine how internal processes for reviewing the decisions of their subordinate institutions might best be structured to meet the particular requirements of these institutions and comport with the requirements of the APL.
The findings and recommendations presented in the report are based on detailed
questionnaires completed by the 15 ministries and 83 subordinate institutions, interviews with a limited number of administrative agency personnel, a workshop discussion with various ministry legal representatives, and the authors’ familiarity with the current system of administrative appeals in Latvia and in other modern democracies, including those in Western and Eastern Europe and North America.
Overall, the review of dispute mechanisms presented here – based on information provided by close to 100 Latvian public institutions – can be considered comprehensive as regards the national-level public administration as a whole. The questionnaire helped to gather detailed information in a standardized fashion from most of the institutions
3 The Ministry of Justice is executing the IDF Grant provided to the Latvian Government by IBRD/IDA.
This report has been prepared as part of the Component 2: Development of appeal mechanisms within ministries of the World Bank Project “Implementation of Laws Governing Administrative Procedures and Information Openness.”
issuing administrative acts and their respective ministries. This approach allowed the collection of objective information on current systems of administrative appeals from the decisions of primary administrative decisionmakers and afforded an opportunity to juxtapose these systems with the letter and spirit of the new APL. It also provided the possibility of identifying serious gaps in understanding between the ministries and their subordinate institutions as to how various internal appeals systems operate now and how they should function in accordance with the APL. While aggregate data from the questionnaire must be interpreted with caution given the wide diversity of institutions, sectoral functions, and particular administrative appeals mechanisms involved, a combination of aggregate and individual agency information derived from the
questionnaire yields a wealth of information for government policymakers contemplating ways to improve both the efficiency and fairness of administrative appeals in Latvia.
A key concern of the report is ensuring that Government policymakers remain sensitive to the diverse needs and organizational starting points of the various administrative institutions in the country—understanding that the ‘fresh start’ offered by the APL should not obscure its manifest objective, as with other APLs around the world, is to provide a common framework of key rights and obligations that can be vindicated through a variety of organizational forms and mechanisms. As a result, several organizational models and processes are offered as alternative options that may be embraced by different parts of the administration.
A second concern is understanding that, insofar as both the Council of Europe and the APL explicitly acknowledge that the handling of administrative appeals represents “a continuation of the original administrative matter,”4 attention must be given to the organizational and human resource policies that will ensure proper adherence by the administration to the core substantive and procedural principles adopted by the Council of Europe through its ministerial resolutions.5 While it is generally beyond the scope of this report to assess exhaustively and recommend improvements to the manner in which Latvia’s public servants issue administrative decisions in the first place, inevitably the findings and conclusions of this report – which address such matters as decisional objectivity and impartiality and the extent to which decisions are intelligible and supported by reasons – do touch on such matters.
The recommendations and guidelines contained in this report have been formulated on the basis of research and analysis carried out during the project, and the authors hope that such findings and conclusions will afford ministries and their subordinate institutions the opportunity to re-examine their internal review systems. It should again be emphasized that public institutions with internal review systems differ greatly in terms of their size and nature, as well as in the volume and type of decisions that are subject to review. The authors acknowledge that for some institutions, particularly small ones, it will not be feasible for all – or perhaps even most – of the principal recommendations and guidelines
4 APL, sec. 76(3).
5 These principles were recapitulated by the European Union in its Charter of Fundamental Rights (at the Nice Summit in December, 2000), which included such principles under its fundamental right of citizens to good administration.
to be adopted. The report should, however, prove unqualifiedly useful to individual ministries and to central government authorities who have primary responsibility for policy planning and legal compliance. Such authorities may need to think expansively about different options for ensuring fidelity to the APL’s key requirements through structures and procedures tailored to individual institutional needs.
The report consists of the following sections. Section B outlines the major components of an effective administrative appeals framework. Section C provides an overview of the key substantive and procedural requirements of the APL as viewed against the backdrop of important Council of Europe principles. How those principles are or are not satisfied in practice currently or may or may not be vindicated in the near-term, as a matter of organization and policy, is the subject of the Section D, which presents a review and analysis of the findings of the comprehensive questionnaires propounded to Latvian ministries. The report concludes in Section E with a series of recommendations for the Ministry of Justice and the Cabinet of Ministers to consider in overseeing the
implementation of the APL.
B. CREATING AN EFFECTIVE LEGAL AND POLICY FRAMEWORK FOR ADMINISTRATIVE APPEALS IN LATVIA
The Latvian APL represents a significant advance toward an administrative procedure framework consistent with modern European democratic principles and the rule of law.
Such principles, captured in key provisions of the APL, seek to reduce the possibility of arbitrariness without eliminating the degree of discretion necessary for public officials to fairly and efficiently manage the administrative state. The overall thrust of the law is to promote greater legal certainty and regularity in the administrative process and allow the private citizen or organization the ability to challenge adverse administrative decisions on an equal footing with state authorities. These features generally shift power from
bureaucrats to citizens and tend to reduce possibilities for corruption (by identifying key procedural features as the norm rather than the subject of special payments for better service or a particular result). In many transition countries, a relatively stable equilibrium based on inadequate resources, administrative inertia, and/or public officials’
determination to protect rent-seeking opportunities prevents administrative appeals and administrative decisionmaking generally from moving in a more transparent and accountable direction. Latvia’s passage of the APL would seem to demonstrate that its competitive political environment and pressures for EU accession have at least begun to overcome such obstacles.6
Throughout the world, however, significantly more attention is paid by the law and by legal experts to administrative decisionmaking and to court review thereof than to appeals within the administration. Because of the respect accorded courts and court
jurisprudence relative to what is often the less disciplined (and sometimes less nuanced) decisionmaking through internal review, and because judicial review of administrative decisions is often de novo in most civil law countries, the handling of appeals by administrative authorities is generally neither well understood nor deemed worthy of careful study. Indeed, precisely because courts are assumed to serve as an independent bulwark against administrative error, arbitrariness, or malfeasance, the state
administration in many countries is not viewed as having the capacity to review its own decisions effectively and dispassionately, even if administrative appeals are taken to a higher institution or a special administrative tribunal.
In fact, either government-wide or on an agency-by-agency basis, a well-run system for dealing with administrative appeals can greatly improve the quality of state
6 There is some evidence that the adoption of progressive administrative procedure laws is driven by the need of certain governments – those facing competitive pressures from electoral opponents or coalition partners – to improve their policing of potentially wayward administrative agents through improved citizen monitoring of administrative decisionmaking. See, e.g., Baum, J., 2000. “Extending the Logic of
Delegation: Administrative Procedural Reform in New Democracies,” paper delivered at the Annual Meeting of the American Political Science Association; Ginsburg, T, 2001. “Dismantling the
‘Developmental State’? Administrative Procedure Reform in Japan and Korea, American Journal of Comparative Law, vol. 49, pp. 585-625. At the same time, trade or other economic inducements, such as European Union accession pressures, appear also to be potent factors driving the adoption of such laws. In the case of Latvia, both factors seem to have influenced passage of the APL.
administration, increase citizen confidence in government, and reduce the administrative appellate burden on courts. To promote such results, state authorities can seek to ensure that:
• Consideration of administrative appeals is informed by necessary and appropriate substantive and procedural principles consistent with a democratic constitutional state;
• Citizens can bring an administrative appeal to a higher administrative institution where proper technical expertise is applied, including, if possible, broader technical, social, and/or economic perspectives than those that informed the original administrative decision;
• Administrative appeals are handled by well-trained, knowledgeable, intelligible, and polite civil servants;
• Such appeals are handled efficiently and transparently, using appropriate forms, internal processes, and information management tools;
• Citizens and NGOs are provided with adequate information with which to understand the basic operation of the law and essential citizen rights thereunder;
and
• An information and monitoring capability is established within and/or outside the government that can provide administrative bodies and the Cabinet of Ministers with useful guidance and resources about the law and its implementation while also effectively benchmarking implementation.
Thus, a government can seek to ensure that appropriate legal, organizational, and human and material resource arrangements are in place to implement an administrative appeals regime properly.
These arrangements take time and effort to implement. In a transition environment, hierarchical (bureaucratic), horizontal (legislative oversight, judicial review), and vertical (citizen) accountability may all be relatively weak in terms of creating effective
incentives for public servants to process administrative appeals more carefully in accordance with the law.7 Effective high-level ministerial leadership for change is an important prerequisite. Appropriate legal guidance (e.g., legal commentaries) need to be written and disseminated to legal authorities in the government, but civil servants and citizens also need simple, practical information – offered, for example, by a state training organization and certain NGOs, respectively – in order to understand their new roles under the law. Due to the diffuse, cross-cutting nature of an administrative procedure law and its interaction with existing special norms and sectoral/agency procedures, it is quite difficult for such a law to elicit broad support or coordination among disparate
administrative agencies, particularly at the middle or lower levels of the bureaucracy.
Such agencies often have more pressing and concrete pressures in front of them. It is often challenging for those seeking to lead a coordination and education effort within the administration to address common issues intelligibly and persuasively when highly
7 If properly funded and trained, however, the courts are in a potentially influential position to steer agencies toward better compliance with administrative law and procedure through judgments adverse to the government and through damage awards.
technical and agency-specific procedures are involved (it is similarly difficult for NGOs and citizens organizations to unite across varied sectoral interests and agendas to
champion procedural rights that may assume quite different forms in various agency contexts). Particularly when a new administrative procedure law appears to confront bureaucrats with unfamiliar requirements and more work (in the short run), incentives under the law must be found that promise public servants more efficient long-term case processing and rewards for better (and sometimes more creative) compliance with the law.
To its credit, the Latvian Government has many of the key elements of an effective administrative procedure law implementation strategy in place with respect to administrative appeals. It has a well-written law set to go into effect on February 1, 2004, based principally on a German model, and commentary-writing on the law is reportedly underway. The law appears to contain all of the fundamental substantive and procedural protections necessary for the law to operate in conformity with Council of Europe principles of good administration and modern global democratic standards. It also has a provision mandating that administrative appeals be taken to a “higher
institution,” which offers the possibility of administrative review by a public body having decisional independence and potentially different technical and other perspectives on the issue(s) being appealed. The government has begun training of civil servants in the new law at the School of Public Administration, and is planning to integrate significant new materials into such training over the next few years. It has also chartered an NGO to help develop a brochure that can advise citizens of their basic rights with respect to the APL.
Finally, it has established an inter-ministerial working group under the leadership of the Ministry of Justice that can serve as an information clearinghouse on certain aspects of the law and that has attached to it a number of outside consultants who can help provide resources and guidance to state officials in the implementation process.
Notwithstanding this admirable beginning – which itself reflects a degree of seriousness often lacking in many other transition states – there is a very significant amount of work still to be accomplished, and many practical options available for properly implementing the APL. The findings from the questionnaire, discussed below, indicate just how far the government may need to go to address certain shortcomings or ambiguities. First,
however, the key substantive and procedural requirements of the APL governing
administrative appeals must be understood. The following section briefly reviews those requirements and considers what may be entailed based on modern European practice.
C. SUBSTANTIVE AND PROCEDURAL REQUIREMENTS GOVERNING THE HANDLING OF ADMINISTRATIVE APPEALS UNDER THE APL
The new APL creates the general legal framework, governed by democratic principles, within which the state administration – through its individual ministries and subordinate institutions – must conduct their procedural legal relations with citizens.8 In the area of internal administrative procedures, including administrative appeals, the APL provides a floor, or set of fundamental standards, that applies unless other laws specifically provide otherwise.9(As to judicial review, the APL is supreme, and administrative proceedings in court are determined by the law).10 While it is understood that a number of harmonizing legislative amendments to special legal norms contained in existing legislation have been, or will be made, the fact remains that certain special legal norms appearing in other laws – though not sub-legislative enactments – may coexist with and supersede the procedures provided by the APL if there is a direct conflict.11 While it is unlikely that any special legal norms will conflict with the core substantive principles propounded by the APL – the latter represent new or strengthened European values that, if properly applied, mark a significant departure from existing practice – there is a real possibility that procedural requirements may clash (e.g., avenues of appeal, time limits).
In order not to violate the law and suffer the possibility of embarrassing (and sometimes costly) legal challenges and administrative audits, Latvian administrative authorities must come to understand well the requirements of the APL governing the issuance of
administrative acts12 and the handling of appeals therefrom. While some provisions may feature ambiguities, and while administrative institutions may have some flexibility in meeting their responsibilities under the law, the APL’s basic substantive and procedural requirements will constrain those institutions’ range of action toward appeals after
February 1, 2004. This section of the report briefly discusses these requirements and then highlights some of the more important legal and policy matters that Latvian policymakers should keep in mind as they assess the readiness of the state administration to adjust to the new law.
1. Key Requirements Governing Appeals Under the APL
The core principles enunciated by the APL relate principally to the procedural rights afforded citizens in the administrative process and their right to have both administrative
8 APL, sec. 2.
9 APL, sec. 3(1).
10 APL, sec. 3(2).
11 Despite the care of certain legal experts working with the Ministry of Justice to identify important areas of conflict, the APL’s failure explicitly to insist on the supremacy of certain uniform norms for most or all aspects of internal administrative procedure can be viewed as a potentially significant practical and symbolic loophole that can invite unnecessary deviations in certain sectors or public institutions from common procedural understandings. It can also create unnecessary confusion on the part of citizens.
12 The term “administrative act” will be used in the English language version of this report to refer to the wide range of administrative actions (including decisions as well as “actual conduct”) subject to the provisions of the APL.
decisions and appeals of those decisions governed by substantive principles consistent with a modern, law-based state.
a) Substantive Provisions/Principles
The substantive principles appear in Sections 5-17 of the APL. These principles include those of:
• Observance of the right of persons (Section 5);
• Equality (Section 6);
• Rule of law (Section 7);
• Reasonable application of the norms of law (Section 8);
• Impermissibility of arbitrariness (Section 9):
• Confidence in the legality (consistency) of actions (Section 10);
• Lawful basis (Section 11);
• Democratic structure (Section 12);
• Proportionality (Section 13);
• Priority of laws (Section 14);
They also include general principles of law, norms of statutory and regulatory
construction and the application of external and internal regulatory enactments, and the application of international law (Sections 15-17).
These principles collectively comprise an approach to regulatory decisionmaking that honors the individual rights of the citizen and that requires precise, proportional,
nondiscriminatory, consistently applied and well-justified legal grounds for state action, particularly action that directly pits individual rights against those of society. These are fully consistent with well-known principles of European jurisprudence such as those of equality before the law, conformity to statutory aim, proportionality, and protection of legitimate trust and vested rights.13 The provisions governing application of external and internal regulatory enactments14 are further designed to ensure that citizens are not bound by the latter and that administrative decisionmaking is consistent with the rule of law and proper delegation of authority. Notably, with respect to application of internal regulatory enactments, if an institution is required to apply such an enactment but has a “well- founded doubt” as to whether such enactment is compatible with an external regulatory enactment, general principles of law, the principles of the APL, or international law, the institution is not to apply the enactment, but to inform a higher institution and the
13 See Council of Europe, 1996. The Administration and You: Principles of Administrative Law Concerning the Relations Between Administrative Authorities and Private Persons—A Handbook.
Brussels: Council of Europe, pp. 13-18. Interestingly, however, the APL does not contain any explicit principles of objectivity and impartiality. This is a significant oversight and ought to be corrected, even though it may be compensated for by norms contained in civil service legislation.
14 An “internal regulatory enactment” is defined by the APL as “a legal instrument which has been issued by a public legal entity with the aim of determining its own internal working procedures or those of its subordinate authority or to clarify the procedures regarding application of an external regulatory enactment in its area of activity (an instruction, recommendation, by-law, etc.).” APL, Sec. 1(7).
Ministry of Justice by way of a “reasoned report.” (APL, Sec. 16(6)). In addition, a significant novelty in the Latvian legal system is the principle of compensation introduced by the APL15 for the loss and harm caused by administrative acts or actual conduct of an institution. The government has undertaken to implement a special law governing the application of norms on the award of compensation, as well as execution of such decisions.
If applied properly, these provisions should shrink the range of administrative discretion and compel officials to move away from ad hoc or arbitrary decisionmaking.16 As discussed below, they necessarily force officials to assume a broader perspective in decisionmaking that entails not only a significant amount of learning and training but recourse to information and informational tools that ensure consistency and monitoring.
b) Procedural Provisions/Principles
Meanwhile, the procedural requirements contained in the APL impose equally important responsibilities on administrative authorities. These include a number of organizational and management arrangements that provide citizens with appropriate opportunities to formulate, file, and track their appeals. If vigorously acted upon by citizens, these procedural provisions provide civil servants with incentives to perform their jobs effectively, including conducting a careful review of appeals based on the substantive principles discussed above.
The APL sets forth a number of important procedural steps that public institutions must follow in issuing decisions to, and considering appeals from, citizens. These include the
duty of public authorities to:
• Provide all legally disclosable information to citizens relevant to the administrative matter in question (Section 54);
• Obtain relevant information from other public institutions (Section 53);
• Accord citizens the right to be represented in administrative proceedings (Section 35);
15 APL, sec. 92: “Everyone is entitled to claim compensation for financial loss or personal harm, including moral harm, which has been caused him or her by an administrative act or an actual action of an
institution.”
16 Despite the reported influence of German administrative law in shaping much of the APL, and despite some provisions in the APL concerning discretion in the issuance of certain kinds of decisions, see APL, sec. 65, the APL is not as explicit as its German counterpart in addressing the matter of the administration exceeding or abusing its discretion. This may be functional given the difficulty of rigidly characterizing certain kinds of discretion in a legal system in transition. Some outside observers find the German categorization of different types of permissible or impermissible discretion confusing and its practical import and application limited. See, e.g., Foster, N. and Sule, S., 2002, German Legal System & Laws (Oxford: Oxford University Press), pp. 255-256 (discussing distinctions between administrative action not covered by a provision (Ermessenuberschreitung or exceeding discretion) with administrative action unrelated to the purpose of the provision (Ermessensfehlgebrauch or misuse of discretion)).
• Clarify and assess (hear) the opinions and arguments of citizens seeking an administrative decision (Section 62);
• Issue acts (decisions) in writing that contain, among other things, the name of the institution issuing the act; the name and address of the citizen or legal person; a recitation of the claim of the citizen (in the case of a request or submission);
opinions and arguments of participants in the proceedings; relevant factual determinations, including the extent to which proffered evidence was accepted or rejected; reasoned justification for the decision (including considerations of usefulness and proportionality); cited norms relied on for the act; and an indication as to where and within what time period the act may be appealed (Section 67).17
• Accept an appeal within 30 days of its issuance at the institution that has issued the challenged administrative act (for the sake of citizen convenience), reduce to writing any such appeal submitted orally, and transmit within 7 days any appeal to a designated ‘higher institution’ for purposes of review (Sections 77, 79);
• Afford the citizen a right to be heard de novo on the merits, in a higher institution, as to alleged lack of clarity, procedural error, erroneous facts, and/or erroneous application of law (Sections 75, 76);
• Suspend the execution of an administrative act as soon as it is disputed (Section 80); and
• Render a decision on appeal (in the higher institution) that conforms to the requirements attaching to the original administrative decision (Section 81).
These provisions generally conform to the key principles of administrative procedure set forth in 1977 by Resolution 31 of the Council of Europe.18 Taken together, these
procedural APL provisions require public officials to be responsive to citizen inquiries, requests, and submissions (including legal and factual arguments); to make it easy for citizens to obtain relevant information and understand their rights; to render clear, reasoned decisions; and to establish clear avenues of appeal from subordinate to higher institutions.
17 The act is invalid on its face if it does not contain the name of the institution, if the institution is not empowered legally to issue the act, if the legal basis for the act is not cited, or if the act requires the citizen to perform actions that are practically or legally impossible (Section 74).
18 That resolution requires every member state to guarantee citizens: (1) the right to have his or her views heard before the administration; (2) the right to access essential facts; (3) the right to legal representation;
(4) the duty of the administration to give reasons for its decisions; and (5) the duty of the administration to indicate the possibility of challenging its decisions. See Schwarze, J., 1992. Administrative Law Under European Influence (London: Sweet & Maxwell), p. 186.
