On 3 October 2022 On the website of the Government Legislative Centre, a project was published by the Minister of Development and Technology, which introduced the amendment of the building law and some other laws (hereinafter ‘Newization’). The main objective and objective of the Novelization is to electronicise the investment process, which should result in accelerating the implementation of investor's investment intentions.
The doubts of construction professionals raise added in Article 1(4) Amendment of the provision Article 10b Building rights, requiring a statement to be made under the penalty of criminal liability for misleading higher authorities with regard to facts or circumstances relevant to the case, in the event of an appeal or complaint by a Party against a decision/order issued in the course of administrative proceedings involving a construction process.
Doubts as to the principle of duality of administrative proceedings
The applicant proposed that the content Article 10b The following provision shall be added to the Construction Law: “If a party to the proceedings lodges an appeal against a decision or a complaint against a decision given under the law, until appeal or complaint is brought, it shall accompany a statement that it is aware of the criminal liability for intentionally misleading the higher authorities as to the facts or circumstances relevant to the case, lodged under penalty for the submission of a false statement resulting from the Article 233(6) Act of 6 June 1997 – Criminal Code (Journal of Laws of 2022, item 1138.
1726 and 1855); the making of the statement is obliged to include in it a clause with the following content: ‘I am aware of the criminal liability for making a false statement’. This clause replaces the instruction of the criminal liability authority for making false statements.’
In correlation to the above-mentioned provision, the applicant proposed adding point 4 to Article 92 Building rights which will regulate criminal sanctions for deliberately misleading a higher authority as to the facts or circumstances relevant to the case, in the event of an appeal by a party against a decision or a complaint against a decision.
The proposed regulation raises serious doubts as to the principle of duality of administrative proceedings, guaranteed in Article 15 the code of administrative procedure (hereinafter ‘the KPA’) and Article 78 Constitution.
According to the Constitutional Regulation, ‘Each party has the right to challenge decisions and decisions given in first instances.
Exceptions to this principle and the procedure of appeal are laid down in the Act.’, which is correlated to the standard contained in Article 15 KPA, which constitutes ‘The administrative procedure shall be two-instance, unless otherwise provided for in the special provision.’ The principle of administrative proceedings referred to is fundamental for the parties to administrative proceedings, including for the parties to the investment process, because it allows for two independent public administration bodies, in the event of a party's doubts about the solution, have identified the party's request in a manner separate and independent of each other in a substantive manner.
Violation of the protection of the legal interest of the parties to the proceedings
The proposed amendments substantially restrict the right of the party to exercise its statutory powers, limiting the party's access to a two-instance review by a competent public administration authority. It should be stressed that the Applicant in the Amending Project has emphasised the speed of proceedings by introducing a restriction on the principle of dual-instance, which should be assessed negatively due to constitutional standards and the protection of the legal interest of the parties to the proceedings.
In view of the significant limitation of the principle of duality and the risk of criminal liability for the party for exercising his or her statutory powers, the proposed amendment should be assessed in a negative manner and it should therefore be considered that, due to the doubts relating to the compliance of the said provision with the rules of administrative procedure, the proposed amendment should be amended or completely removed from the amendment.