Introduction
One of the fundamental principles of administrative proceedings is the two-tier system. This means that a party dissatisfied with a decision may generally exercise the right to file an appeal. If such a right is available to the party, they are informed of it in the instructions, which form an integral part of the decision.
| An appeal | |
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| ⇒ is a remedy against an administrative decision (e.g., a decision issued by a provincial governor refusing to grant a temporary residence and work permit). |
| Complaint | |
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| ⇒ is a remedy against a ruling (e.g., a ruling refusing to initiate proceedings regarding the granting of a temporary residence permit). A complaint may be filed only if the law so provides (See: possible decisions). |
| Extraordinary remedies for final decisions | |
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| ⇒ revocation or modification of a decision, a declaration of its invalidity, and the reopening of proceedings. |
Provisions
The issue of appeals is regulated by the provisions of Section II. (Proceedings), Chapter 10 (Appeals), Chapter 11 (Complaints), Chapter 12 (Reopening of Proceedings), and Chapter 13, Articles 156–159 of the Code of Administrative Procedure (Revocation, Amendment, and Annulment of Decisions) of the Act of June 14, 1960, Code of Administrative Procedure.
Detailed Explanation
I. Ordinary Remedies (Appeal / Complaint)
Authority to which the appeal is filed
An appeal or a complaint must be filed with the authority of a higher instance than the first-instance authority through the authority that issued the decision or ruling, in the case of a complaint.
The first-instance authority may thereby reconsider the matter and issue a new decision through self-review (such a decision may be appealed again).
However, if the first-instance authority determines that there are no grounds to revoke or amend the contested decision, it is required to forward the appeal/complaint along with the case file to the second-instance authority within 7 days of receiving the appeal/complaint.
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If the appeal is filed directly with the appellate authority, bypassing the authority that issued the contested decision, the second-instance authority is required to forward the appeal to the first-instance authority. |
Formal Review
The appellate authority first assesses whether the appeal, or in the case of a ruling, the complaint, contains any formal deficiencies. It then examines whether the filing of the appeal is admissible. Subsequently, it verifies whether it was filed within the time limit.
⇒ Information on formal deficiencies: open link.
⇒ Information on the inadmissibility of an appeal: open link.
Deadline for filing
The deadline for filing an appeal begins on the date the decision, or the ruling (in the case of a ruling), is served on the party.
⇒ Information on service: open link.
An appeal must be filed within 14 days of the date of service of the decision, and a complaint within 7 days of the date of service of the ruling. The date of service of the decision is not included in the calculation of the deadline.
If the deadline for filing an appeal or a complaint falls on a public holiday or a Saturday, the deadline for taking this action expires on the first weekday following those days.
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A party may also, during the period for filing an appeal, waive the right to appeal to the authority that issued the decision. In such a case, the decision of the first-instance authority becomes final within 14 days of its delivery. |
Statement of Reasons and Other Elements
An appeal or complaint does not require a detailed explanation. However, it should clearly indicate that the party is dissatisfied with the decision issued.
The provisions of the Code of Administrative Procedure specify the manner of filing an application (which also includes an appeal and a complaint) and define the elements it must contain. If the application does not meet the requirements set forth by law, i.e., contains deficiencies that have not been remedied following a request to do so, the authority reviewing the application will not consider it.
⇒ Information on formal deficiencies: open the link.
⇒ Information on dismissal without consideration: open the link.
Suspension of enforcement
An appeal filed within the statutory time limit suspends the enforcement of the contested decision, except in cases where the decision has been declared immediately enforceable or is subject to immediate enforcement by law.
In contrast, filing a complaint does not suspend the enforcement of the decision. However, the authority that issued the decision may suspend its enforcement if it deems it justified.
Effects of Filing an Appeal
As a result of the filing of an appeal, the second-instance authority re-examines the case decided by the first-instance authority—it therefore re-evaluates the evidence gathered before the first-instance authority. The appellate authority may also conduct supplementary evidentiary proceedings on its own and take new circumstances in the case into account before issuing a decision.
This proceeding concludes with the issuance of a decision in which the appellate authority:
- upholds the contested decision—thereby finding that the decision of the first-instance authority was correct;
- overturns the contested decision in whole or in part and rules on the merits of the case (i.e., finds that the original decision was issued in violation of the law and that the second-instance authority holds a different view from the first-instance authority), or, by overturning that decision, dismisses the first-instance proceedings in whole or in part;
- dismisses the appeal proceedings (see: Withdrawal of the appeal).
In a situation where the first-instance authority has violated procedural rules, and the scope of the case necessary for clarification has a significant impact on its resolution, it may also refer the case for reconsideration. The second-instance authority should indicate in its decision which circumstances should be taken into account upon reconsideration of the case, and if the first-instance authority misinterpreted applicable legal provisions in the contested decision, it should additionally provide guidelines regarding the interpretation of those provisions.
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The appellate authority may not amend the decision of the first-instance authority to the extent that it was favorable to the party. Therefore, when rendering a decision, it may not worsen the situation of the appealing party, unless the decision of the first-instance authority grossly violates the law or the public interest. |
II. Extraordinary Remedies
| Extraordinary measures for reviewing final decisions include: revocation or amendment of the decision, declaration of its invalidity, and reopening of proceedings. |
A motion to reopen proceedings and a motion to declare a decision (ruling) invalid may be filed once the administrative proceedings have concluded and the decision (or ruling) issued in the case has become final. As a result of filing such an appeal, the final decision (ruling) is subject to review aimed at removing the defective decision from legal circulation.
The procedures for reviewing decisions are not interchangeable. The law specifies the specific circumstances that constitute grounds for reopening proceedings or declaring a decision invalid. These two procedures also have different consequences.
As a result of the reopening of proceedings, the defective decision is set aside and the case is reconsidered on its merits.
In the case of annulment, however, the competent authority (i.e., generally an authority of a higher level than the one that issued the decision) has the power to issue a decision removing the decision from legal circulation (analogous to a ruling). In such a situation, the contested decision has no legal effect whatsoever.
The law also provides, in certain situations, for the possibility of revoking or amending a final decision.
⇒ Information about this procedure: open the link.
