Question:

In the procedure of determining an actual permanent residence, as defined by Residence Registration Act, an absent party may be appointed a special case guardian. That individual can also be appointed, based on Articles 211. and 212. of Marriage and Family Relations Act (MFRA), by the administrative agency running the procedure. How can the representative, who is an employee of the administrative body (a co-worker of the person in charge of the procedure), serve and protect the interest of a party who they do not know and the party is either abroad or the administrative agency cannot contact them? How will the other official of the same administrative agency serve and protect the rights of the party and in what way will they use legal means, such as filing appeals? Will they themselves cover the administrative fee for filing the appeal?

Answer:

In accordance with the constitutional clauses and principles as well as the rules of the General Administrative Procedure Act (GAPA), parties whose legal rights and/or obligations the administrative agency is adjudicating upon, must be given the opportunity to protect their legal rights. Therefore when the administrative agency is unable to determine or contact the party (especially in the case of an unknown foreign residence), it HAS to appoint a statutory representative otherwise any following issued administrative act (e.g. determination of residence) would be formally illegal. Such an act would be challengeable, as the administrative agency would break at least two basic administrative procedural rules (following Article 237, paragraphs 2 and 3, of GAPA). Administrative procedure mandates that the parties must have the ability to participate in the procedure and to protect their rights and legal benefits by cooperating in an efficient manner.
In certain cases the administrative agency may appoint a temporary representative to the party. In accordance with Article 51 of GAPA the administrative agency conducting the procedure must appoint a temporary representative for a single urgent act in the procedure, when the urgency of the matter or the party’s interests so require. For instance when the party’s residence is unknown or the party cannot be invited because he or she lives too far; but not in case when the party or his/her location has been unknown from the start of the procedure. If the element of urgency is not present, the administrative agency running the procedure must require that social services appoint a guardian for a party with limited capacity to participate in the proceedings.
A temporary representative engages in all the activities of the administrative procedure, but only for the duration of the urgency, i.e. when acting on behalf of the party. That means that during that time they are also mandated to file complaints or use other legal means. Since the function of a temporary representative is mandatory, the temporary representative has the right to a reimbursement of expenses and a fitting reward (Articles 113 and 114 of GAPA) (Jerovšek and Kovač, Upravni postopek in upravni spor, 2010, p. 97)
When there is a requirement for a complete protection of the party’s interest because they, for example, did not have the chance to participate in the procedure (which is by the nature of the matter always in the case of determining permanent residence) the administrative agency must appoint a special case guardian as determined by Marriage and Family Relations Act. The act stipulates, In Article 211, the appointment of a special case guardian or a guardian for specific types of tasks for an absent person, whose residence is unknown and does not have a statutory representative, for an unknown holder of assets when those assets require a trustee, as well as in other cases, when it is so required for the protection of rights and benefits of individuals by the social services or in the procedures before other administrative bodies (Article 212 of MFRA). The act therefore defines a general clause as a reason for the appointment of the representative - the need for the protection of the rights and benefits of the party, where the act specifically ensures the representative protection of assets of an unknown owner (Zupančič, Družinsko Pravo, 1999, p. 183). During the appointment of the guardian the social services or any other administrative agency defines the scale of their obligations and rights, taking into account the circumstances of each individual case (Article 215. of MFRA).
The roles of the temporary representative (as defined by GAPA) and the special case guardian (as defined by MFRA) are in its purpose, reasons for appointment, and obligations, fundamentally different, even though they may have been appointed by the same administrative agency (for example an administration unit). A temporary representative is an institute of the administrative procedure, where the administrative agency appoints a representative with an order (following GAPA) and the representative is obligated to fulfil the task for the duration of the urgency, regardless of their own volition. Due to the urgency of the matter the temporary representative may also be one of the officials of the administrative agency conducting the procedure (however not the official in charge of the procedure as the representative must first and foremost represent the rights of the party, whereas the official in charge of the procedure represents the public benefit). On the other hand the appointment of a guardian is a legal matter. The administrative agency issues a decisions based on requirements of MFRA, especially that of the non-conflict between the interests of the party and the envisaged guardian. Furthermore, the administrative agency must verify that the envisaged guardian consents with the appointment; if such a person cannot be found within the circle of the party or the clerical workers of the agency conducting the procedure, the guardian is appointed, following MFRA, by the guardian body (social services). It is therefore assumed, that should the guardian assume their role (by their own volition), they do so as an act of honour and act in the interests of the party during the entire procedure.
Of course the procedural expenses and any fees under the obligation of the party (i.e. by Administrative Fees Act) are expenses of the procedure and are as such paid by the party. If a legal representative pays a certain obligation on behalf of the party, they list it as an expense, which the administrative agency must account for in their decision as a debit of the party (see GAPA, Article 113 and following). The administrative agency directly reimburses such expenses of the representative, and in the case of a non-paying party forcibly collects them later on.

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