Question:

Agency tried to serve the decision to the party to the address of their temporary residence that is identical to the address for serving. They have at this address a post office box. But the addressee in time of serving was not at home and was left with a written note regarding arrived letter. After 15 days a letter with decision (withdrawing of the residence permit for foreigner; note was left on e.g. 4.3) was left in accordance with Article 87 of GAPA. When shall consignment be considered as served? When is consignment served if the server leaves consignment in the post office box later than 15 days since the note regarding arrived letter was left (after 15 days or on the day of actual acceptance)? When does decision become complete and executable if it was served through fiction of serving?

Answer:

In accordance with provisions of the GAPA if the person is absent on the address for serving the server after the Article 87, Paragraph 3 of GAPA will leave a written note in a post office box, in which they state where the document can be found and that the addressee must accept it in 15 days. This kind of serving is considered complete by the Article 87, Paragraph 4 of GAPA on the day when the addressee accepts the document; if they do not accept the document in 15 days, the service shall be considered complete on the day when this time limit expires. After the expiration of the time limit the server leaves the document in a post office box of the addressee, but nonetheless this does not affect fictively already ensued day of service (more in Breznik et al., ZUP s komentarjem, 2004, page 322 – 358)

If the written note is left on e.g. 4.3, 15 days for reception of consignment begin to run from the 5.3 on (it is the first day from 15 days) and expires if addressee does not come to the server to accept procedural documents on 19.3. Fiction of service is ensued on 20.3. By opinion of majority the date of service is 16th day since the server left written note regarding arrived letter. It should be noted however, that some believe fiction occurs on the 15th day (e.g. Grafenauer in Breznik, Upravni postopek in upravni spor, 2005, page 235; regarding the dilemma 15th or 16th day and jurisprudence look at the same authors, Upravno pravo, page 362). Definitely the date when the server actually leaves writing in post office box does not have effect on (fictive) date of serving.

If the decision is served on a specific day (e.g. fictively on the day 20.3.), time limits, also the time limit for the appeal are counted from the next day onwards. Time limits are counted from the next day onwards, although they are bound on fictive and not actual serving. Article 235, Paragraph 1 of GAPA provides that an appeal can be filed in 15 days, whenever it is not in sectoral statute or in any other way differently determined. By the Article 224 of GAPA decision is complete when it cannot be challenged by the appeal anymore. Decision issued by the inferior agency becomes by the provisions of GAPA executable with expiration of the time limit for appeal in a case that the party did not use the option of appeal (Article 236, Paragraph 1 of GAPA).

In accordance with Article 44, Paragraph 3 of Aliens Act (AA-1, Official Gazette of RS, no. 61/99 and amendments) the party has an option to file an appeal on the issued decision in 8 days after being served. If the time limit for appeal is e.g. 8 days, the decision becomes complete on the day after the expiration of the time limit for appeal. If the expiration of the time limit falls on holiday the time limit is extended. If e.g. date 20.3. falls on Saturday the time limit for appeal is initiated on Sunday 21.3., but it expires not on Sunday 28.3.; but on Monday 29.3.; and thus the decision becomes complete if there is no appeal on Tuesday 30.3.

Article 47 of AA regulates illegal residence in Republic of Slovenia. When determining the time limit in which the foreigner must leave the country, the agency that issues the decision defines time in which the foreigner can leave, and provides also that the time limit cannot be longer than three months. If in the disposition of the decision e.g. the time limit of 8 days is defined from completeness of decision for execution of decision and the decision is complete on 30.3., this means performance time limit including 7.4. until midnight, thus the decision becomes executable on 8.4. Caution is needed to distinguish last day of performance time limit and the date of executability because the decision becomes executable the next day since the last day of the performance time limit (the party did not fulfil the obligation in this time limit).

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