Question:

In what way is regulated the area of use of recording devices during procedural acts, such as the recording of given statements on the record during the act of determining facts, the recording of an oral hearing at the seat of the agency, depositing statements of the party on the record, examination of parties, formulation of the record? When is an attorney allowed to intervene during a testimony of the party (the influence on the testimony of the party during the hearing)?
During an oral hearing, as a part of the declaratory proceeding, one of the parties demanded from the official that they be allowed to video record the oral hearing. May or must the official enable the recording of the oral hearing and how do they proceed if the other parties in the procedure do not consent with it - how does it affect the order in the procedure?
Is it permissible to make audio or video recordings during an oral hearing in administrative procedure by the present public, i.e. the press or other third persons?
GAPA states in its Article 155 that an oral hearing is public and lists the cases when the public can be wholly or in part excluded. It states nothing about recording, while during judicial procedures recording is regulated by the Court Rules and the Criminal Procedure Act. Can the head of the agency therefore adopt an act (i.e. house rules) in which he prohibits any audio or video recordings during oral hearings or demands that a prior written permission is required. Is such an act proportional from the view of the rights of the press and public information? Should this question be regulated by a law?

Answer:

GAPA does not fully regulate the possibilities of using recording devices during procedural acts in administrative procedures. Such possibilities are only stated in the range of provisions regarding records (the minutes) when running a declaratory and evidentiary proceedings or for example taking depositions on the record when performing views or oral hearings. The question is tightly connected with the principles of publicity or confidentiality in the administrative procedure and ensuring the order in the procedure. The institute of recording of oral hearings is not explicitly regulated by GAPA. It needs to be stressed that the legislator has already regulated the use of recording devices for oral hearings in the areas of civil and penal procedures. The reason for the regulation in those areas is mostly the economy of proceedings, as it would save time and lower expenses for both the parties and the agencies (compare Article 14 of GAPA; Jerovšek et al., ZUP s komentarjem, 2004, p. 113).
The oral hearing is the central procedural act of declaratory and evidentiary procedure, in which the matter of the declaratory proceeding is directly and personally verified. The goal of the oral hearing is the clarification of the matter and it therefore represents the concentration of the entire declaratory procedure in one single act of procedure (Androjna and Kerševan, Upravno procesno pravo, 2006, p. 326). The official follows Article 154, paragraph 1, of GAPA when non-mandatorily posting an oral hearing, either following their own judgement or due to a proposal of the party, with the intention of clarification of the matter, as well mandatorily, when there are two or more conflicting parties involved or a view or hearing of witnesses or experts is required. GAPA also stipulates, in Article 155, paragraph 1, that the oral hearing is public, except in cases defined in the following paragraphs, such as disruption of the order, which can be foreseen or appear during the hearing.
Although GAPA does not explicitly regulate the recording of hearings or individual procedural acts performed during oral hearings, we believe that a common interpretation of the provisions on hearings and records allows their recording, however they are not obligatory for the official. The officials therefore decide for themselves, regardless of who gives the proposal or performs the recording, whether the record of the hearing will be in its traditional form or as a record with a written copy or by allowing others to record it.
Roughly speaking we can characterize three groups of persons when discussing the proposals for recording:
1 By an order and on behalf of the agency or the official running the procedure;
2 By the parties or their representatives;
3 By third parties in the procedure, such as representatives of the press, experts or the general public.
Ad 1:
When an official acts according to GAPA during the conduction of procedural acts they should mostly consider article 76, paragraph 3. It mandates that statements of parties, witnesses, experts and other individuals of the procedure, vital to making decisions, must be put on record. Although the recording is ordered by the official, they must inform everyone present of their intent and explain the meaning of the recording that is the formation of the record. The decision to record must have legitimate grounds - i.e. not only some kind of disciplinary act on the parties or the introduction of the measure as a threat towards others (e.g. to make them act according to the expected demands and superiority of the official), although it needs to be emphasized that regardless of the procedure the parties are obligated to speak the truth (Article 11 of GAPA).
In connection with Article 76, paragraph 9, of GAPA, the official is given the option to dictate the record to an electronic medium (e.g. digital record, magnetic tape etc.). In such case the official in charge of the procedure at the end of the act asks the participants to state their acknowledgement with the contents of the record to the electronic media and that they agree with it or to state if they have any remarks. When using such form of the record it is important that a written copy is put together within eight days and sent to all the persons participating in the act, along with a memorandum stating they may within the following eight days object to any possible irregularity of the transcript. If they do not within eight days submit any remarks on the record it is considered they do not have any. This needs to be explicitly pointed out in the memorandum (Article 76, paragraph 10, of GAPA).
Additionally Article 201 of GAPA enables the official, when performing investigative or declaratory acts on the property itself, to order that the course of evidence taking by a view be partially or entirely recorded in audio or video format. Such recordings are enclosed with the record on the view and can later on be played back to the party or other participants, especially experts, or reviewed by the official before making a decision. The recording counts as circumstantial evidence. It cannot replace the record (after Jerovšek et al., ZUP s komentarjem, 2004, p. 560-561).
We would like to add that the party may appoint a statutory representative (e.g. an attorney) to represent them during the procedure, except during the acts where the party must give statements themselves. Acts of the procedure which are done by the representative on behalf of the party have the same legal effect as if they were done by the party (Article 53 of GAPA). The appointment of the representative does not prevent the party from participating in the procedure. They can give statements along with their representative during and outside of the hearing. The agency can also in certain procedural situations demand that the party personally expresses themselves on certain matters. If the party is present during the oral statement of their representative they can immediately after revoke or change it. Even the older legal practice expressed the view that the revocation or change of the statement is only possible in case of immediate presence of the party, otherwise in case of discrepancies the principle of free evaluation of evidence applies (after Jerovšek et al., ZUP s komentarjem, 2004, str. 215-216). During the hearing of the party their attorney, as an authorized person, may only intervene if the agency conducting the procedure fails to inform the person to be heard of the duties of telling the truth (everyone questioned) or the privilege against self-indictment (only the witnesses), as is defined by Article 11, Article 188, paragraph 3, and regarding witnesses Article 185 of GAPA. The attorney therefore cannot intervene by redirecting the contents of the testimony during the testimony of their client (primary basic principles of substantive truth and the duty to tell the truth).
Ad 2:
Regarding the possibility of recording of the oral hearing on the request of the party GAPA does not foresee such a request, as it only states, in Article 74, paragraph 1, that the oral hearing is a procedural act of the procedure for which a record by the official must be made. The record, assembled according to the law, is a public document and is considered documentary evidence. The official therefore ensures the required documentary evidence by creating the record, as only the correctly established (recorded) record gains evidentiary power, which a recording by (for example) another participant of the procedural act does not have.
With that in mind we believe that if the party wishes to record the oral hearing by themselves and the official assesses that such action does not obstruct the cooperation of that person or the other participants as well as the complete (uninterrupted) conduction of the procedural act, other participants of the event may allow it. See the provisions of Articles 109, and following, of GAPA for more on disruptions and order of the procedure. However the consent must be given by everyone present and not just the official, as the recording constitutes an invasion of the privacy of those individuals and the lack of explicit legal grounds requires their consent. We list, among the present participants of the procedure, those persons, who during the procedure protect their rights and legal benefits, or others appointed in a certain role (representatives, witnesses, experts, etc.). The representatives of the public may observe the hearing but must be given equal opportunity to leave the room before the recording begins.
The request of the party to record the oral hearing can be understood by the official as analogous to a request for inspection, based on Article 82 of GAPA, and would as such be granted. However in the given example the official would have to really assess whether or not it is a matter of obstruction of the process of the procedural act, as for the purpose of providing evidence the record or the recording by the agency is sufficient and has priority. On the other hand the recording of the hearing by one of the parties interrupts at least their own participation, if not the participation of the rest of the participants.
Ad 3:
The principle is valid equally for parties as well as representatives of the press or the expert or general public, which can follow public oral hearings under Article 155 of GAPA. That means that reporters and other representatives of the press may, after the current regulation, record administrative procedures, regardless of the form and technology of the used recording device (audio or video, with a camera, smartphone etc.), as long as two cumulative conditions are met:
● The recording does not interfere with the progress of the procedural act, which is under determination of the official in charge of the procedure,
● All present participants of the procedure (parties, witnesses, etc. - see above) give their expressed consent, for which the author of the requested recording must beforehand explain the purpose and the type of editing, and the entire occurrence is noted on the record.
On the question, whether the head of the agency can determine the justifications or limitations of the generally entitled recording, our answer is that it is a matter of defining the rights and benefits of the participants in the procedure; we therefore believe it is an institute of materia legis. The head of the agency can, using special house rules or a special decree, define the recording or its limits only based on, and within the bounds of, the law. Because GAPA poorly regulates the recording or generally does not give limitations and even demands the principle of public hearing, any such regulation by the head would constitute a serious breach of the law. Using GAPA as a well as the Decree on Administrative Operations, especially Article 61 of DAO, the head can enact house rules which determines the way workspace and other spaces of the agency are used, the means of ensuring the security of the building and the people inside, the means of maintaining order and cleanliness, the way visitors access the building, the functional use of the grounds and parking spaces belonging to the building, etc., among which the recording of a concrete procedure is not included. The master of the procedure is not the head of the agency, but the official conducting the procedure or the single procedural act (the hearing). Only the latter can therefore, keeping in mind the actual circumstances of the case, evaluate if the recording by parties or by the press would interrupt the procedure from the view of the required house order, and either before or during a certain hearing issue a decree excluding the public (Article 155 of GAPA)
Consent of other participants must be given for a recording without the explicit legal grounds of the record, in the form of a recording by the official, even if there are no other barriers. If there is no legal ground or decree of authority (e.g. of the administrative agency) or express consent of the participants or recorded persons, such recording does not only display a lack of evidence but can even be a violation of Articles 138 and 149 of the Penal Code of the Republic of Slovenia. Let us add that the question of permissibility of the recording is often considered outside the concrete administrative procedure, when a person wishes to record not just the answer of the official but the entire “response”, as seen from the practice of the information commissioner. GAPA gives no legal grounds for such. Even the information commissioner is very reserved when interpreting the permissibility of (especially audio) recording, maintaining that the understanding of the so called right of voice as the right of privacy. The constitutional court has already treated this right (see UP 472/02), during which they warned that an individual's voice can be much more revealing than what was written down (his emotions, relationship to the matter, type of speech, accent - education and general eloquence, etc.). Therefore the person with the individual's voice at their disposal in a way has access to that individual’s personality; the reproduction of the audio recording therefore is not qualitatively comparable with a written copy. The individual can of course at any time consent to the recording (audio and video) but must be in advance informed of the future operator (holder of the recording), so that they may know for what purpose the recording will be made (for example for how long it will be kept) but most of all it gives them the option to refuse the recording if it is not mandated by the authority. It is therefore necessary to follow the principle of proportionality.

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