Administrative Silence as the Challenge in Regulation of Administrative Proceedings. Best Practices and Successful Measures Adopted by Selected EU Countries in the Context of Ukrainian Law "On Administrative Procedure"

As to the legal situation in Ukraine and regulation of administrative silence, the new LAP does not address administrative silence according to the positive model. The shape of the new general administrative procedure is closer to the German Administrative Procedure Act (VwVG) and German doctrine, and as it was mentioned in the comparative part, the regulation of administrative silence in Germany was actually missing. It was not defined as legal construct and has not really addressed ahead of the adoption of the EU Service Directive in 2006.

According to the article 55 of the Constitution of Ukraine "Everyone shall be guaranteed the right to challenge in court the decisions, actions, or inactivity of government authorities, local government, officials and officers". In addition to that, the Law on Administrative Procedure addresses administrative body inactivity by providing the mechanism of administrative appeal: "Inactivity of the administrative body is appealed in the case of non-issuing of the administrative act within the period established by law or delay in the consideration of the case" (Art. 78 part 5). What needs to be noted, however, is that this provision is related to the administrative appeal, which is not obligatory according to the current version of LAP. The duration of administrative proceeding is limited by the law - general deadlines for administrative proceeding in accordance with LAP (Art. 34 part 2) is defined as "reasonable period", but within 30 days (in cases of hearing - 45 days).

At the same time, article 124 (part 3) of the Constitution of Ukraine (amendment of 2016) foresees that "The law may specify a mandatory pre-trial procedure for settling a dispute". Therefore, there seems to be an additional room for introduction of obligatory measures in the future, at least in sector-specific laws.

There are also some examples of addressing administrative silence in accordance with the positive model in some parts of administrative procedure, as well as in special laws. Article 58 (part 2) of LAP foresees internal procedure addressing, within public administration, the approval of the other administrative bodies. This procedure, used before issuing administrative act, is regulated according to the positive model of administrative silence.

Another example is the Law "On permit system in the field of economic activity" which also consists of the regulation based on positive model, including definition of the principle of tacit consent and its special regulation (Art. 4-1, part 6). In addition to that, another interesting regulation introducing the positive model is provided in part 8 of Art. 85 of the LAA: "In cases stipulated by law, if a decision on a complaint against an administrative act is not made and/or not communicated to the complainant within the time and in the manner prescribed by law, the complaint shall be deemed fully satisfied from the day following the day of expiration of the specified period". This provision contains two important aspects - reference only to the appeals (complaints) against administrative acts, and the reference to a special law (for example, such regulation is available in the Tax Code of Ukraine).

What is important to note is that in Ukrainian legal practice, the majority of administrative acts are appealed directly to administrative courts. This might mean that the burden of examination of administrative cases is often pushed to the courts, overloading the judges, who are obliged to practically carry out the initial administrative investigation. Therefore, there seems to be a strong case in favour of shifting the appeals concerning administrative acts to the second instance of public administration bodies, instead of overburdening of the administrative courts.

In this regard, the Tax Code seems to be the area to firstly introduce a mandatory pre-trial appeal procedure. In tax cases there are often many disputable aspects, and when the case is appealed directly to the court, almost entire burden of their resolution is again placed on the administrative judges. In these instances, administrative bodies should be much more engaged in solving the administrative disputes and settling the case instead of relying on the courts. This solution is allowed by the Constitution of Ukraine and could be established to make the procedure more efficient.

What also can be recommended is to focus while training civil service professionals on the correct implementation of LAP, as well as efficient management and improved quality of the administrative proceedings. Apart from formal, organised trainings, there are many good quality handbooks and guides accessible on the internet [For example, 15] - similar one, adopted to the local legislation and conditions, could be prepared under the auspices of the Ministry of Justice. Cooperation with the specialised administrative judges who have experience in this subject could also be investigated, as the courts could provide valuable input into what needs to be improved.

In most European countries, the control of timeliness consists of legal actions by citizens in case of administrative inaction (appeal, judicial review, right to compensation). It is also common for a complaint to be submitted to the Ombudsman (Netherlands, Portugal, Croatia, Serbia, and Lithuania) [1, p. 9]. Therefore, strengthening the competences of Ombudsman is another avenue that might be taken into consideration. According to The Venice Principles [16], the mandate of the Ombudsman shall cover prevention and correction of maladministration, and the protection and promotion of human rights and fundamental freedoms. The institutional competence of the Ombudsman shall cover public administration at all levels. The mandate of the Ombudsman shall cover all general interest and public services provided to the public, whether delivered by the State, by the municipalities, by State bodies or by private entities. The competence of the Ombudsman relating to the judiciary shall be confined to ensuring procedural efficiency and administrative functioning of that system. In the future, it might also be considered to invest in professional legal services in the office of Ombudsman (for example, a dedicated Department for Administrative Proceedings), which could also enable the Human Rights Commissioner's personnel to specialise in providing support to the citizens.

Acknowledgement. The author would like to thank her Colleagues from EU4PAR Project in Ukraine: Irina Boiko, Andriy Shkolyk and Viktor Tymoshuk for their support, providing information and useful comments to the earlier drafts of this article.

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