Question:

While deciding on a right, the administrative body - during a special declaratory proceeding - accessed to official records and obtained an oral statement from the party. In order to clarify the state of facts, the administrative body should have examined also the official of another body who ran the procedure the result of which was entered in the official records (e.g. police officer), since besides the party and the above official no other person was involved in the event. How can the administrative body summon such official if it does not know their name and can the official (police officer) be examined as a witness?

Answer:

Real facts of the dispute must be determined in administrative procedure. To this end all facts that are relevant for lawful and correct decision must be established. (Principle of substantive truth, article 8 of the GAPA). Finding and proving legally relevant facts are exercised in the framework of special or summary declaratory proceeding. GAPA stipulates that everything that is suitable for examining facts can be used as evidence or everything that meets individual case, especially papers, witnesses, statements from parties, experts and inspections. Real facts of dispute can also be determined on the basis of data in computerized records (2nd and 3rd paragraph of article 164 of GAPA). Therefore evidence is not specified exhaustively, but only from case to case. This means that the public official can use evidence that is not regulated by GAPA. But if any of the papers are used that are defined in GAPA, then rules of GAPA must be obliged.

From the circumstances of the described case administrative agency can determine facts of dispute using following evidence: data from official records, statements from parties and hearings of public officials of other administrative agencies that were present on the venue (witnesses). Witness can be an individual, who is capable to detect a fact, about which he should testify and he must be able to reconstruct it (1st paragraph of article 181 of GAPA). This point given, there are no fundamental obstacles that any other public official (police officer) could not be a witness in a procedure. GAPA stipulates that a person cannot be a witness if that person is involved in the specific administrative procedure as a public official (in accordance with provisions of article 28 of GAPA and the following) and a person who is a party to the case. Public official conducting the administrative procedure must secure public interest but party of procedure is following its individual interest (2nd paragraph of article 181 of GAPA; Androjna in Kerševan, Upravno procesno pravo, 2006, page 358; Jerovšek et. al., ZUP s komentarjem, 2004, page 520). A party cannot be a witness but he/she can for the purpose of proving facts, give an oral statement, if there are not many other evidence available (article 188 of GAPA). Evidentiary value of this kind of evidence is lower because of the following of the individual interest (oral statement as a form of evidence must be separated from statement from party that is intended for explaining facts or clarifying contradictions of its allegations by the article 146 of GAPA, because it belongs in the set of principle of hearings by the article 9 of GAPA).

Witness is invited with a written summon (3rd paragraph of article 70 of GAPA), which is served by the provisions of article 83 of GAPA and the following. Integral part of summon is a full name of a person that is being invited (article 71 of GAPA). In relevant case, administrative agency knows which body ran the procedure, which result was registered in official record, but it does not know which public official of that administrative agency ran the procedure. So it is not possible to invite that person and examine it as a witness. Because full name of this person is important for establishment of facts that are legally important for making a decision in a specific administrative matter, administrative agency can ask the agency that ran the procedure for the information regarding his/her name (legal aid, article 33 of GAPA). When administrative agency gets the data, it will invite the witness. The witness will have to comply with provisions of GAPA that regulate testimony of witnesses (duty to respond to an invitation, coming to the hearing, saying the truth; article 182 and 185 of GAPA). The witness has the right to refuse to answer to specific questions, if legal reasons are given.

The Administrative Consultation Wiki is a student project. See Privacy Policy and Disclaimer regarding content responsibility.

Comment:

Loading comments...