Question:

Following Article 180, paragraph 1, of GAPA, an agency must, within 15 days, issue a decision on the rejection of the issue of certificates or other documents, unless otherwise defined by the regulation on which the establishment of the official records was based. Whose competence is the issuing of such decisions, both at the inferior and superior level of adjudication, when there is a request for a document in connection with the education at a certain school (e.g. grammar school)? Is the agency at the inferior level and the ministry at the superior level, or are both levels within the school, and if so which bodies are competent?

Which are the possible reasons specified in an appeal against such a decision at the inferior level of adjudication?

Answer:

The role of GAPA is mainly the regulation of the procedure in deciding on rights, legal benefits and obligations of parties in administrative relations (of administrative matter; see Article 2 of GAPA). With regards to the direct connection of the matter of regulation, that is the administrative matter, GAPA also stipulates certain special procedures, which are not defined as administrative matter - among them is the issuing of certificates. The issuing of certificates does not mean the act of deciding, but only proving that which has already been decided (see Jerovšek and Kovač, Upravni postopek in upravni spor, 2010, p. 13 and 165)
The purpose of regulating the relationships between the participants of the administrative procedure, especially between the agency and the party, is the protection of the public benefit and the rights of the party as one of the basic principles of GAPA (Article 7 of GAPA). The same purpose has lead the legislator in defining the procedure of issuing certificates, as is provisioned by Articles 179, and following, of GAPA. Agencies must give legitimate persons the ability to exercise their rights even when they request the issue of information from official records or in a special declaratory proceeding, as is provisioned by the sectoral legislation for such certificates of individual agencies.
GAPA defines the jurisdiction, analogous to the issue of certificates, in Article 1, 15, and following. Article 1 of GAPA states the types of agencies which run administrative and to it related procedures. Among them are statutory authorities or public service performers, when they are authorised by the sectoral legislation to decide on the rights, legal interests or obligations in administrative relations. A part of them are most definitely schools, as institutions of public services (statusly a public institution or a part of, or a concession operator of publicly accredited programmes). However the inferior agency in this matter is not the administrative unit or municipality administration, as is derived from Articles 15, and following, of GAPA, and superior sectoral legislation is used (see Article 3 of GAPA). To answer the question of the appropriate competence of the inferior and superior agencies, sectoral legislation must be used. For example, Gimnazije (Grammar Schools) Act in Articles 41.B and 41.C, stipulates that realization of rights and obligations of the students is decided by the expert bodies of the school in accordance with the act and other regulation (therefore usually the school, that is grammar school (gimnazija), and the principle on its behalf), while the appeals regarding acquisition or removal of the student status are decided by the school council, and all the other appeals by the appeals commission, appointed by the school council. In education, i.e. in execution of public service, the two-tier decision-making in administrative procedure is usually ensured, as is required by the basic principle in Article 13 of GAPA, within the institution or a specific school, so that the competent body at the inferior level is the school and the appeal is adjudicated upon by the school council or the appellate commission of the school. The ministry (for school or education) does not normally perform the procedure of adjudicating upon appeals, but mainly holds (only) the right of oversight.
Unless the sectoral regulation states otherwise, it is mutatis mutandis to do the same when issuing certificates or decisions on the rejection of their issue. In case the party requests the issue of a school certificate it is in the competence of the school the party attended, for example a specific gimnazija. In case of an appeal against the decision on the inferior level of deciding the decision upon the appeal is made by the agency defined by the sectoral legislation, for example the appellate commission of the gimnazija.
There needs to be an emphasis on the duality of the procedure with regard to the issue of certificates and especially the decisions on the rejection of their issue (see Jerovšek in Kovač, ib., str. 168):

1. If the competent agency issues a certificate it is not considered an administrative matter as it is not an act of deciding. The issued certificate has no legal nature of a single administrative act or a decision, which could be challenged in an administrative procedure or in court. If the party does not consent with the contents of the issued certificate they have to request the change in a different way - through changing the decision based on which the entry was made in the official records and on which the certificate is based on. According to Article 180a, paragraph 4, of GAPA the party may object and request the change of the certificate, if they claim, based on evidence that it is not in accordance with the information in the official records, as is required following paragraph 3 of the same article. In such case the agency issues a new certificate (or a negative decision) within the same time limit as they would normally issue the certificate; the appeal counts as a new application. Following the stated the party is not bound by any time limit regarding the challenge of the accordance of the certificate with the official records. The agency can also decide on its own that the information in the certificate is not true according to Article 180a (the basic principle of the free evaluation of evidence, Article 10) and conducts a (renewed) declaratory and evidentiary procedure regarding the disputable facts.
2. On the other hand, according to Article 180a of GAPA the issue of the certificate is rejected (fiction of rejection due to the silence of the agency) with the issue of the decision, which is a single administrative act and can be challenged by an appeal (after Articles 229 and following of GAPA) and other legal means after GAPA or in an administrative dispute. The legal practice does not require informing of the party with a notice (judgement of the supreme court of RS U 52/94-5) or the issuing of a receipt stating for example that the official records do not contain such information or that the fact does not exist. It decides on the right of the party to the issue of the certificate, proportional to the obligations of the agency for such issue (Jerovšek et al., ZUP s komentarjem, 2004, p. 517). A decision dismissing the issue of the certificate is issued, because the requested certification is not a fact included in the official records, or it is not a fact which by law requires certification with a receipt, or the agency is not competent for the issue of such certificates. The decision must have all the constituent parts and the form as a judgement (judgement of the supreme court of RS U 52/94-5, see Article 210 of GAPA), especially the reasoning and the instruction on legal remedies, which would allow the exercise of the rights of the party. The disposition part, and not just the reasoning, must state whether the agency dismissed the new request because they are not obligated to issue the requested certificate or because it has been determined that a specific fact was impossible to confirm (judgement of the administrative court of RS U 2313/2000).

However GAPA gives the party legal grounds to challenge the act of the administrative agency (the school) within the bounds of the law and the purpose it follows. It is therefore necessary to mutatis mutandis interpret the reasons for appeal, as they are defined in Article 237 of GAPA, when challenging the decision after Article 180a of GAPA. The purpose of the issue of the decision as a challengeable act is to protect the party in the way that the competent agency actually decides on the matter (prevent the silence) or refuse the issue of such only when it is so justified, as they cannot validate the request (e.g. the student did not finish the gimnazija, so the requested school certificate cannot be issued). The challenge of the decision is therefore only possible within that frameset. An appeal can be filed, for example, if the competent school incorrectly determines that student did not finish the programme, when they did in fact and the official records state so, or it is so determined in a special declaratory proceeding. The party cannot challenge the actual facts of the official records during the procedure of the issue of the certificate. If the person is not listed in the official records, the appeal that they should be cannot be exercised during the procedure of the issue of the certificate but it is a matter of a special procedure (Jerovšek et al. ib.). However the request for the issue cannot be rejected before the applicant is given a chance to prove the facts on which the insertion or deletion from the official records depends on (see judgment of the supreme court of RS I Up /241/2000).

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