Question:

The party submitted a request for the recognition of a right, i.e. issuing the decision (e.g. building permit). But after six months from the submission of the request no answer was received. What can party do in this case?

Answer:

The administrative agency must decide and issue a decision in time limit provided by the statute otherwise the administrative silence occurs. This position is not illegal, for the party it means establishing fiction of negative decision because of which they can appeal to the competent superior agency (about prescribed time limits and decision-making in reasonable time limit more in Sever, Izbrani vidiki pravice do odločanja v razumnem roku v upravnih zadevah, 2009). If special statute does not provide other time limits for deciding upon, the time limit, provided by the GAPA shall be applied. In case of summary declaratory proceeding (Article 144 of GAPA) the agency in administrative procedure must decide as soon as possible, at the latest in one month; in the case of special declaratory proceeding (Article 145 of GAPA) the time limit for issuing the decision is two months at the latest from the day the agency received a complete application.

When administrative agency does not decide upon the matter in due time the party can in accordance with Article 21 of the Decree on Administrative Operations (DAO) request an explanation why the decision was not issued in the statutory provided time limit. Furthermore party can notify the agency that they will appeal to the competent superior agency, as provided by the Article 222 of GAPA if the agency does not issue the decision as soon as possible.

The party can directly proceed by the Article 222 of GAPA if the competent agency did not issue a decision and did not serve it on the party in due time – fiction of dismissed claim. In such case of administrative silence of the agency on the inferior level of adjudication they have the right to appeal to the competent superior agency. Party can appeal immediately after the expiration of the time limits and always up to the issuing of the decision. Because of the administrative silence the party is not bound by the time limit for appeal provided by the Article 235 of GAPA (15 days from serving the decision) and can submit the appeal until the issuing of the decision as long as administrative silence lasts (Jerovšek et al., ZUP s komentarjem, 2004, page 617-618).

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