Proposal for amendment of the provisions of the Act on General Administrative Procedure (Official Gazette of the RS No. 24/06, 105/06 - ZUS-1, 126/07, 65/08 and 8/10) - hereinafter referred to as the ZUP
As we have already stated in previous initiatives to remove or reduce bureaucratic obstacles, a major or the major bureaucratic obstacle is the length of administrative procedures for obtaining individual permits. In one case, we sought to shorten the procedure by applying the provisions of Article 273 of the CPL, but were unsuccessful. The competent authority in the administrative unit considers that there is no basis in this provision for a decision prior to an administrative dispute. Since we have had several such cases, we are submitting this petition for a possible amendment of this provision so that it would also apply to the first instance administrative authorities.
We have a specific case where a relatively simple procedure for the issue of a permit under Article 50 of the former Mining Act, which was initiated at the Škofja Loka administrative unit, has been ongoing for almost four years and is currently before the Administrative Court. We also have another identical or similar case for which such a permit was obtained at the Sevnica Administrative Unit in 2009. Today, this permit is final. The Ministry tried to annul this permit on the grounds of nullity, but the Administrative Court ruled in our favour. Following the judgment, the Ministry then stopped the annulment procedure, thus confirming the legality of the decision of the first-instance authority. In both cases, the authorisation was granted under the provisions of Article 50 of the former Mining Act. In both cases, we were the project documentation provider and the client's agent. It can therefore be argued that the two cases are quite similar, if not identical.
In the specific case, the Škofja Loka Administrative Unit rejected the client's application, even though we had informed the client how another administrative unit had decided on the same case. We are convinced that the rejection decision was issued due to the fact that the Administrative Unit was not independent in its decision-making, but listened to some kind of instructions from the Ministry.  We lodged an appeal against the Administrative Unit's rejection decision, which was rejected by the Ministry this year, despite the fact that in a very similar, if not identical case, a decision to discontinue the proceedings had been issued ten days earlier on the basis of a judgment of the Administrative Court. What is important here is that both administrative acts were issued by the same official and that, before the rejection decision was issued, we had written to that official asking her to finally decide on the matter, taking into account the Administrative Court's judgment. This did not happen, since the rejection decision was apparently issued without taking account of that judgment, as is also apparent from the reasoning of the decision. We can therefore conclude that there was also a retaliatory measure here, because we also had to turn to the Administrative Inspectorate because of the enormous delay in deciding on the appeal.
As a result of the Ministry's refusal, we were forced to lodge an administrative dispute against the decision of the Administrative Unit. We also referred to the case-law already issued by this Court. In view of the fact that the Ministry had taken a completely different decision in a completely identical case and that the company had suffered certain damages as a result of the long wait for the permit and the failure to carry out the works, we wanted the Administrative Unit to issue a new decision itself, in accordance with the provisions of Article 273 of the Administrative Code, before settling the administrative dispute. However, the latter does not wish to do so because there is a procedural obstacle. According to the Administrative Unit, such a decision can only be issued by a second-instance body, since only its decisions are subject to an administrative dispute. In this respect, it refers to the explanatory notes to Article 273 of the CPR. In our view, such an obstacle should not exist. If, in the present case, an action against a decision of the first-instance body was required under the Administrative Disputes Act, then the same should also apply to decisions taken by the first-instance body pursuant to the provisions of Article 273 of the Administrative Disputes Act. Otherwise, it should be clear from that provision that it applies only to the second-instance body. We are therefore convinced that this is a bureaucratisation of a specific matter. In order to avoid this, we propose a corresponding amendment to this provision, which, due to its complexity, we are not able to draft and propose ourselves at the moment. Otherwise, we will continue to believe that the administrative authorities themselves are sawing the branch through which the money for the salaries of officials flows into the budget, and that it is precisely such officials who are also responsible for the current holes in the budget.
We expect an appropriate response from the competent authority on this initiative, clearly indicating whether the proposed initiative demonstrates a basis for a change in the regulation that will make it significantly easier or quicker for the user or interested party to access a specific right. In this context, by easier, we mean in particular a reasonable time to obtain the final authorisation.