The Essence and Types of General Administrative Proceedings
General administrative proceedings are the procedure under which an administrative organ examines an applicant's application, investigates the circumstances significant for the case, and either issues an individual administrative-legal act or refuses to issue one. The General Administrative Code of Georgia distinguishes three types of administrative proceedings — simple, formal and public administrative proceedings. Each type is governed by its own detailed rules, yet the circle of participants, the manner of submitting an application and the general grounds for adopting a decision are common to all of them.
Unless the law provides otherwise, the rules of the Civil Code of Georgia apply to the legal capacity of a person participating in the proceedings, while the administrative organ is represented by the responsible official or their official representative. Under the procedure established by the Code, the following have the right to participate in administrative proceedings:
- the applicant;
- the administrative organ competent to adopt a decision on the matter;
- a person whom Georgian legislation grants the right to participate in the proceedings;
- another administrative organ, in cases provided for by Georgian legislation;
- the interested party.
Initiation of Proceedings and Submission of the Application
Administrative proceedings are initiated on two grounds: an application by an interested person, or an obligation imposed by legislation on the administrative organ to issue the relevant act. Unless legislation provides otherwise, the application must be submitted to the administrative organ that is competent to decide the matter raised in the application and to issue the corresponding individual administrative-legal act.
If the matter requested in the application falls within the competence of another administrative organ, the organ is obliged to forward the application, together with the documents attached to it, to the competent organ no later than within 5 days. An administrative organ is not entitled to demand from the applicant any additional document or information beyond that provided for by law, and it is inadmissible to suspend the proceedings or to refuse to consider the application on this ground. The applicant is further entitled to demand the protection of submitted information containing a commercial secret or personal data, if the applicant wishes to ensure the confidentiality of that information.
Within 3 days of establishing that the application conforms to the formal requirements, the organ is obliged to send a copy of the application and the documents attached to it to the administrative organ or public expert whom legislation has granted the right to participate in these proceedings. The detailed requirements for the content and registration of an application are determined by the relevant norms of the Code, so in practice it is always advisable to check the specific requirements published by the organ in advance.
Legal Aid and Representation
The administrative organ is obliged to explain to the interested party their rights and duties, to acquaint them with the procedure for considering the application, the type and time limit of the proceedings, as well as the requirements that an application or an administrative complaint must satisfy, and to point out errors made in the application. Where a child is concerned, the organ must provide information and give consultation with cultural sensitivity, in accordance with the child's age, sex and individual capabilities, in language understandable to the child or through other auxiliary means of communication.
Everyone has the right to conduct relations with an administrative organ through a representative, as well as to use the assistance of a defender. The organ is obliged to request from the representative a document confirming the representative's authority, and it is not entitled to require the interested party to conduct relations with the organ through a representative, except in a case directly provided for by law. If the applicant or another interested party has appointed a representative, the organ sends all documents intended for that party to the representative.
The law makes the appointment of a representative mandatory in two situations. If an interested party participating in the proceedings has no permanent place of residence in Georgia or is registered without an indication of an address, that party must, within 3 days of the organ's request, appoint as representative a capable person registered at a specified address in Georgia, to whom all documents intended for the party will be sent; if this requirement is not fulfilled, the organ is relieved of responsibility for failing to send a document, and this cannot become a ground for declaring an individual administrative-legal act null and void, except in cases established by law. Furthermore, if an application was submitted by more than 25 persons, the persons who signed the application must appoint one representative within the established time limit; if they fail to do so within the period set by the organ, the first person to have signed the application is deemed to be the representative.
As regards costs, the general rule is that each party itself reimburses the costs related to the administrative proceedings that were incurred by it, on its own initiative or for its benefit. This means that the conduct of the proceedings does not impose additional expenditure on the organ in place of the party, and conversely, a party cannot, on the basis of the general rule alone, demand from the organ reimbursement of its representative's or other own costs outside the cases specifically provided for by law.
Impartiality and Recusal
As a guarantee of impartiality, an official of an administrative organ may not participate in administrative proceedings if that official:
- is themselves an interested party in the case;
- is a relative of the interested party participating in the case or of its representative;
- is the representative of the interested party in the case;
- acted as an expert in connection with the matter at issue;
- acted as a mediator in the same case or in another case substantially related to it;
- is in an employment relationship with the interested party in the case;
- owns, personally or through a family member, shares or interests in the enterprise that constitutes the interested party;
- is a family member of the interested party in the case or of its representative.
An interested party who believes that a ground exists for the recusal of an official participating in the proceedings has the right, before the individual administrative-legal act is issued, to declare the recusal to that official in writing. A recusal application must be reasoned, and the party is obliged to submit it within 2 days of the start of the proceedings or of the moment when the fact or circumstance giving rise to the recusal ground became known to the party.
The question of recusal or self-recusal is decided by the head of the official against whom the recusal is declared and, where such a person does not exist, by the head of the superior organ. The recusal of a member of a collegial organ is decided by the collegial organ without the participation of that member. Where the recusal or self-recusal concerns an entire collegial organ, or such a number of its members as renders the organ incompetent to adopt a decision, as well as an official who has no superior organ, the individual administrative-legal act is issued by the organ designated for resolving this matter in accordance with legislation — by its duty performer or by an independent organ.
Examination of the Case, the Right to Be Heard and Access to the File
The administrative organ is obliged, during the proceedings, to examine all circumstances significant for the case and to adopt a decision on the basis of an assessment and reconciliation of those circumstances. It is inadmissible to base an individual administrative-legal act on a circumstance or fact that has not been examined by the organ under the procedure established by law. The organ has no right, without a preliminary examination, to refuse to accept an application or petition within its competence on the ground that the application or petition is inadmissible or unfounded. The interested party, for its part, is obliged to cooperate with the organ in the manner established by legislation, and must appear before the organ and give explanations only in a case directly provided for by law.
An interested party participating in the proceedings has the right to submit evidence, as well as petitions requesting the examination of the circumstances of the case. In connection with a petition, the organ adopts one of two decisions within a period of 2 days — it either satisfies the petition or refuses to satisfy it. A child's right to be heard cannot be restricted by reference to the child's age or other circumstances: the child must be given the opportunity to express an opinion in a form desirable for the child, and child-tailored proceedings must be conducted with paramount consideration of the child's best interests, which implies procedures accessible and perceivable for the child at every stage of the proceedings.
An interested party participating in the proceedings has the right to examine the case file, except for internal working documents connected with the preparation of the individual administrative-legal act. Where the interest in examining a document outweighs the interest in protecting secrecy, in the cases provided for by law and by a court decision, the party is also presented with those case materials that contain personal data, a state or a commercial secret. The party examines the materials at the organ conducting the proceedings and, in a special case, on the basis of a written request, at another administrative organ, as well as at a Georgian diplomatic mission or consular post in another state.
The party has the right to request copies of documents and other materials in the proceedings; copies of materials containing personal data or a state or commercial secret are handed over only in the cases provided for by law, by a court decision. It is inadmissible to establish any fee or to create any other obstacle to receiving a copy of a document or other material, to photographing a copy, or to sending it by post, apart from the reimbursement of the necessary amount.
Adoption of the Decision and Repeated Application
Unless otherwise provided by law or by an act issued on its basis, the administrative organ adopts a decision — to issue an individual administrative-legal act or to refuse to issue it — within one month of the submission of the application. Before issuing an act refusing to satisfy the application, the organ is obliged to give the applicant the opportunity to submit their own opinion on the circumstances negating the application, if the refusal is based on information about the applicant, or on information that differs from the information submitted by the applicant.
An application concerning a matter on which an act refusing satisfaction has already been issued may be submitted again only if the factual or legal situation that underlay the issuance of the act has changed in favour of the interested person, or if there exist newly discovered or newly revealed circumstances that condition the issuance of a more favourable act for the applicant. The detailed rules for computing time limits and for the restoration of a missed time limit are governed by other norms of the Code, so when calculating a concrete deadline it is advisable to rely on those norms or on professional advice.