Question:

In proceeding in which the party is a foreign citizen, administrative agency for the completion of the administrative procedure (e.g. obtaining of residence permit) needs certificate from official records (e.g. regarding impunity) from home country. How must the agency proceed in this case? Is it allowed to request from the party that they deliver this kind of file or must the administrative agency obtain it itself?

Answer:

Amendment of GAPA-B from 2002 provided that the party in application in the proceeding that began on their request regardless on the provisions of sectoral statutes and executive regulations is not obliged to enclose certificates, extracts and other data regarding facts from official records that are kept by the administrative and other agencies, the local communities agencies or the statutory authorities. In this case the agency must act in accordance with Article 139 of GAPA (Article 66, Paragraph 3 of GAPA).

This provision in accordance with the principle of protection of the rights of parties (Article 7 of GAPA) and the principle of the economy of the proceedings prevents that the state (perceived in a broader sense, therefore also the local communities agencies and statutory authorities) would unreasonably encumber the party at exercising their rights, when it can get this data because of the computerising and interconnection of the official records faster and easier by itself (look at decision of the Supreme court of RS dated 2.12.2005, no. I Up 25/2003). This kind of provision is in accordance with the principle of focusing on the parties that is defined by Article 5 of the Public Administration Act (PAA-1 Official Gazette of RS, no. 52/2002 and amendments) but it is limited because of the protection of personal data.

Two restrictions were already provided with amendment of GAPA-B from the year 2002, namely general (if the party does not wish that the agency obtains data about them, they can prohibit it – Article 66, Paragraph 3 of GAPA) and special (tax secret – Article 139, Paragraph 5 of GAPA). Restrictions were expanded with amendment GAPA-C from the year 2004 because of the compliance with the constitutional principle of the equality before the law (Article 14 of The Constitution of the Republic of Slovenia, Official Gazette of RS, no. 33I/1991 and amendments) – one of them relates to the data regarding impunity (Article 139, Paragraph 5 of GAPA). The data related to this restrictions can be transmitted but only if provided so by the special statute or on the basis of explicit consent by the person to which the data refers to (Jerovšek et. al., ZUP s komentarjem, 2004, page 422; same Androjna in Kerševan, Upravno procesno pravo, 2006, page 304). From the content of this regulations follows that the statute tries to find balance between request for efficiency of administrative operations and the protection of the rights of parties.

In our case it is the data that is not accessible in official records of Slovenian Authorities. Upon that we must use rules regarding legal help (lat. auxilium iuris) because the purpose of the rule regarding exchange of data from official records cannot be expanded beyond the established borders – the borders represent records of “domestic” agencies. Basic rule of international legal help is that the provisions of international agreements apply. If there are none then the principle of reciprocity applies (Article 34, Paragraph 5 of GAPA). In order for agency to obtain certificates/data from the agency of another country an international agreement should exist that would provide rights and obligations regarding requesting and transmitting data to agencies of different countries. If it does not exist the agency can request from the party that they provide the data themselves.

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