Question:

Active party (applicant) in the application defines, that they meet the requested conditions by the sectoral statute (e.g. condition of the registration in the Republic of Slovenia on the day of handing out application). In this case must the official that is conducting procedure in accordance with Article 139 of GAPA verify the data from the official record (e.g. AJPES) if party’s claims are true? Can the Article 139, Paragraph 3 of GAPA be interpreted in a way that the official on the basis of the mentioned article proceeds only when it is necessary to clarify the matter and with that is not obliged to verify every data that the party stated in the application and about which official records are kept?

Answer:

By the fundamental principle of substantive truth (Article 8 of GAPA) establishment of the facts and circumstances, that might contribute to the matter is necessary before decision with a degree of confidence is reached (probability suffice only exceptionally, when statute explicitly provides so), therefore the declaratory proceeding and the evidence-taking proceeding must be efficient (look Jerovšek and Kovač, Upravni postopek in upravni spor, 2010, page 153).

In accordance with the principle of substantive truth and the investigative principle (inquisition maxim) the official is responsible for collecting facts and evidence which are required to decide on the subject of the proceeding. Official can be and must be interested not only in the facts stated by the parties or by the accessory participants but also in all the facts and circumstances, that are relevant to decide by the sectoral regulation (look Jerovšek et al., ZUP s komentarjem, 2004, page 419).

Amending act of GAPA-B from the year 2002 provided, that the party with its application in the proceeding commenced at a request by the party irrespectively of the provisions of the sectoral statutes and of the executive regulations is not obliged to enclose certificates, extracts and other data about facts from the official records, that are kept by the administrative agencies and other state agencies, local community agencies or the statutory authorities. In that case agency must proceed by the Article 139 of the GAPA (Article 66, Paragraph 3 of the GAPA). Article 201, Paragraph 1 of DAO (Decree on administrative operations) in accordance with the Article 139, Paragraph 3 and 4 of the GAPA clearly defines that official who conducts the proceeding and has the possibility of the insight to the official records, provides the data directly by himself, because party is not requested to provide and produce evidence, that can be obtained faster and easier by agency (expression of principle of the economy of proceedings, Article 14 of GAPA). Whenever official does not have the possibility of the insight to the official records they must obtain the data on the basis of request submitted to other agency (the State agencies, local community agencies and the statutory authorities) which manages the requested data, namely in the time limit of three working days after the application was filed by the party. The agency requested must provide the data immediately or in 15 days from the day of receiving the request at the latest. Statute provides that agency must obtain the data from their own or other official records and is not allowed to request from the party itself to provide the adequate documentation to the application that is important for proving decisive facts. Exceptionally this does not apply, if the party itself explicitly provides the relevant data or prohibits the agency to obtain this data. The party does not need to (regardless of the provisions of the sectoral statutes and the executive regulations) enclose to the application the certificates, extracts, and other data about the facts if they can be stated in front of the agency with the personal identity document or any other public document (Breznik et al., ZUP s komentarjem, 2008, page 245).

In our case the official as an institution of establishing and proving facts is obliged to establish the true state of facts and thus satisfy the fundamental Principle of Substantive Truth. Depending on the circumstances of the specific administrative matter they can entrust to the evidence that was provided by the party and decide upon established state of facts. Whenever the party does not provide the evidence or the official considers that other evidence must be carried out (e.g. verify the data in the official records) they establish declaratory proceeding and evidence-taking proceeding and only then accept the decision. The official alone directs the course of the declaratory proceeding, in dependence with actually shown beliefs and their subjective beliefs on the true state of things therefore the answer to the exposed dilemma is not ambivalent since acting of the official is conditioned with the aforementioned. Therefore it means that not in every case the verification of the data from the official records will be needed and also that the official will not be obliged to rely on the data submitted by the party.

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