LAW ON GENERAL
ADMINISTRATIVE PROCEDURES
PART ONE
GENERAL PROVISIONS
CHAPTER I
BASIC PRINCIPLES
Implementation of the Law
Article 1
(1) The administrative units and other
public (government) units shall act pursuant to this Law in the administrative
procedures, directly implementing the regulations and adopting decisions on the
rights, obligations and legal interests of the individuals, legal entities or
other parties.
(2) The enterprises, institutions and other
organizations, funds and associations, public organizations, citizen
associations and organizations shall act pursuant to this Law in exercising their public authorizations,
entrusted to them by law and by legal decision of the municipality council or
of the city of Skopje, for deciding on the issues mentioned in paragraph 1
above.
(3) The units of the local self-government
and of the city of Skopje shall act pursuant to this Law in exercising
their authorities as well as in
exercising the authorities delegated to them by the Republic for deciding on
the issues mentioned in paragraph 1 above.
Special Procedures
Article 2
Some
issues of the procedure regarding certain administrative area may be, by
special law, stipulated differently than they are stipulated by this law if
this is necessary for proceeding in that administrative area.
Subsidiary Implementation of the Law
Article 3
The
administrative areas for which there is special procedure stipulated by law,
shall be governed by the provisions of that law. The provisions of this law
shall apply for all issues that are not covered by a special law.
The Principle of Lawfulness
Article 4
(1) The units, enterprises, institutions,
funds, associations, organizations and communities, as well as other
institutions that are engaged in administrative issues shall adopt their
decisions on the basis of the law, other regulations of the government units
and on the basis of general rules and regulations of the organizations, funds
and communities passed by them in accordance with their authorizations.
(2) If the units are authorized, by law or
by rules based on the law, to adopt decisions regarding the administrative
issues at their own discretion, then such decisions should be made within the
limits of their authorizations and in accordance with the purpose of the
authorization.
(3) The provisions of this law shall also be
valid in cases when the unit is authorized to adopt decisions regarding the
administrative issues at its own discretion.
Protection of Civil Rights and Public Interest
Article 5
(1)
When administering a procedure and
adopting a decision, the units shall be obligated to enable to the parties to
protect and exercise their rights taking into account that such rights are not
to the prejudice of the rights of other parties (persons) nor contrary to the
public interests established by law.
(2) If the official, on the basis of the
existing facts, finds or assesses that certain citizen or organization has a
basis for exercising certain right, then the civil servant shall inform and
help the citizen or organization.
(3) If certain obligations are imposed on
the citizens by the law, then the measures that will be taken, pursuant to the
regulations, shall be more favorable for the citizens, if the aim of the law is
accomplished by such measures.
The Principle of Efficiency
Article 6
The
units, enterprises, institutions, funds, associations and other organizations
and communities involved in adopting decisions on administrative matters shall
be obliged to provide efficient way for exercising the rights and interests of
the citizens, enterprises, institutions and other organizations, funds and
communities.
State of Affairs
Article 7
The
actual situation shall be determined during the procedure. All relevant facts
shall be investigated and determined in order to make legal and correct
decision.
Hearing of the Parties
Article 8
(1) Prior to adopting any decision, the
party shall have the right to state the facts and circumstances which are
relevant for the decision.
(2) The decision may be adopted without
prior hearing of the party only in cases stipulated by law.
Evaluation of the Evidence
Article 9
The
authorized (official) person, at his own discretion, shall decide on the
validity of the facts used as proof, on the basis of conscientious and careful
evaluation of each evidence separately and of the aggregate evidence, as well
as on the basis of the impact that such evidence will have on the outcome of
the procedure.
Independent Adopting of Decisions
Article 10
(1) The unit shall administer the
administrative procedure and adopt a decision independently, within the
authorizations established by law, other regulations and by general rules and
regulations.
(2) The authorized (official) person in the
unit authorized for the procedure shall independently determine the facts and
circumstances. On the basis of these facts and circumstances the authorized
person shall implement the regulations, i.e. the general rules and regulations
on a specific case.
The Right of Appeal
Article 11
(1) The party shall have the right to lodge
an appeal against a first instance decision. It may be stipulated only by law
that an appeal cannot be lodged against certain administrative procedures if
the rights and lawfulness are stipulated otherwise.
(2) If there is no second instance
administrative (appellate) unit, an
appeal against a first instance decision may be lodged only in cases stipulated
by law. Such law shall determine the unit that is authorized to adopt a
decision regarding an appeal.
(3) According to the provisions of this law,
the party shall have the right to lodge an appeal if the first instance unit
does not adopt a decision within the term stipulated.
(4) An appeal cannot be lodged against a
decision of the second (appellate) instance.
ALTERNATIVE
(5)
The party may lodge a complaint and
institute an administrative dispute against a decision made by the first
instance unit without prior lodging of an appeal.
Validity of the Decision
Article 12
The
decision against which no appeal can be lodged
nor administrative dispute can be instituted (a legally valid decision),
by which the party has attained certain rights, or by which certain obligations
have been imposed on the party, can be annulled, abolished or amended only in
cases stipulated by law.
Economy of the Procedures
Article 13
The
procedures shall be administered efficiently in order to keep the expenses low
and spare time for the party and the other persons that are involved in the
procedure. However, all documents needed for correct determination of the facts
of the case and for making a legal and correct decision shall be provided.
Assistance to Unschooled Parties
The
unit that administers the procedure shall take care that the lack of schooling
or knowledge of the party and other persons involved in the procedure shall not
be to the disadvantage of the parties and their rights pertaining to them
according to the law.
Usage of Language and Alphabet
Article 15
(1) The administrative procedure in the
Republic of Macedonia shall be administered in the official Macedonian
language.
(2) The citizens of the Republic of
Macedonia, the minorities, shall have the right to use their own language in
the administrative procedure.
The
unit shall inform the party or other participants in the procedure on the usage
of the language. It shall be entered
into the records that the party i.e. the other participants have been informed
on that right and the party’s statement regarding the information shall also be
entered into the records.
(3) If the party or the other participants
in the procedure are not citizen of the Republic of Macedonia and do not know
the language of the procedure, they shall have the right to follow the course
of the procedure through a translator.
ALTERNATIVE
(4) The
alphabets of the other nationalities and minorities of the Republic of
Macedonia shall be equally used in the administrative procedures.
Usage of the Term “Unit”
Article 16
The
unit that administers and makes decisions in the administrative procedures
shall include: administrative units, other government units, enterprises,
institutions, other organizations, funds, communities, public organizations and
associations of citizens and other organizations, unless otherwise established
by this law.
CHAPTER II
AUTHORITY
1. Genuine and Local Jurisdiction
Article 17
(1) The genuine authority for making
decisions in the administrative procedure shall be determined in accordance
with the regulations established for the specific administrative area or the
authority of certain units.
(2) The local authority shall be determined
in accordance with the regulations on the political - territorial division and in accordance with the regulations on
the organization of certain units.
Article 18
(1) The genuine authority for deciding in
the first instance administrative matters shall be vested in the administrative
units of the Republic of Macedonia or in their Regional Offices , if, by law,
the authority is not vested in other units.
(2) On the basis of the authorizations
established by law, the military units may have the authority, established by
sub-legal regulation, to decide in the first instance administrative
procedures.
Article 19
The
appropriate administrative unit shall have the authority for the administrative
issues, unless such authority is vested in some other unit.
Article 20
If
no regulation exists for determining which administrative unit shall have the
genuine authority to decide on certain administrative issue, and such authority
cannot be determined according to the nature of the issue, then that issue
shall be within the authority of the administrative unit authorized for general
administrative issues.
Article 21
(1) A unit shall not have the right to take
over certain administrative issue that is within the authority of another unit
and make a decision independently, unless such possibility is established by
law and in accordance with the conditions stipulated in that law.
(2) A unit authorized for deciding on certain administrative
issues may delegate such authority to other unit only on the basis of adequate
legal authorization.
(3) The genuine and local authority cannot
interchange by agreement between the
parties, by agreement between the units and the parties or by agreement between
the units, unless otherwise stipulated by law.
Article 22
(1) In accordance with the provisions stated
in Article 17, paragraph 2 herein, the local authority shall be determined:
1.
on
issues regarding real estate - according to the location of the real estate;
2.
on
issues regarding the activities of certain public agency, enterprise,
institution, organization, fund or community - according to the place of their
registered office. The authority over issues regarding the activities of the
enterprises’ business units, institutions, organizations, funds and
communities, shall be determined according to the registered office of the
unit.
3.
on
issues regarding managing a shop or professional activities of certain persons
that perform or will perform their activities on a specific location -
according to the address of the shop or according to the office where the
activity is performed;
4. on other issues - according to the residence of the party. In
case of more than one parties, then the authority shall be determined according
to the party involved. If the party has no permanent residence in the Republic
of Macedonia, then the authority shall be determined according to the party’s
temporary residence; otherwise, the authority shall be determined according to
the last residence or temporary residence of the party in the Republic of
Macedonia.
5. In case the local authority cannot be determined according to
the provisions stated in items 1 to 4 in this Article, then the authority shall
be determined according to the place where the reason for the procedure
occurred.
(2) In case of issues regarding a ship or
airplane or in case the reason for the procedure occurred on a ship or
airplane, the local authority shall be determined according to the ship’s port
of registry i.e. airplane’s port of registry.
(3) The provisions stated above shall be
implemented unless otherwise stipulated by special regulations.
Article 23
(1) In case two or more units have simultaneous
local authority on the issues stated above, then the unit that first started
the procedure shall be authorized for administering the procedure. However, the
units may agree which of them shall administer the procedure.
(2) Any locally authorized unit, in its
region, shall perform those activities of the procedure that cannot be
postponed.
Article 24
The
unit that started administering the procedure as a locally authorized unit
shall remain authorized even if certain circumstances appear, during the course
of the procedure, that could change the place of authority for that procedure.
The unit that administers the procedure may delegate the authority for such
procedure to the other unit, if this significantly simplifies the procedure,
especially for the party . Such unit, considering the circumstances, may have
local authority.
Article 25
(1) Each of the units, in their line of
duties, shall stay within the limits of their genuine and local authority
during the course of the whole procedure.
(2) In case the unit determines that it is
not authorized for certain administrative issues, then the unit shall act in
accordance with the provision stated in Article 66 (62), paragraph 3 and 4 of
this law.
(3) In case the unit that was not authorized
for the procedure took some action regarding the procedure, the authorized unit
to which the procedure was delegated to shall determine whether some of those
actions should be repeated or not.
2. Parties having Diplomatic Immunity
Article 26
(1) Regarding the jurisdiction of the local
authorities over procedures that involve foreign person having a right to diplomatic immunity in the
Republic of Macedonia, a foreign country or international organization, the
provisions of the international law that have been recognized by the Republic
of Macedonia shall be valid.
(2) If there is any doubt regarding the
existence or the scope of the right to immunity, then the administrative unit
authorized on foreign affairs shall give its interpretation.
(3) The official acts that relate to persons
having the right to immunity shall be performed by mediation of the
administrative unit authorized on foreign affairs.
3. Regional
Limits of the Jurisdiction
Article 27
(1) All units shall perform their official
activities within the limits of their region.
(2) If a delay is likely to appear, and the
official action should be taken out of the regional limits of the unit, then
the unit may perform the action out of the limits of its region. The unit is
obliged to inform the other unit authorized for that region where the action
was performed.
(3) The official activities that have to be
taken in buildings and other structures owned by the military units shall be
performed with prior reporting to the commander of the building or the
structure and by his consent.
(4) The official activities that have to be
performed in a extra territorial region shall be performed by mediation of the
administrative unit authorized for foreign affairs.
4. Conflict
of Authority
Article 28
The
republic administrative units shall settle the conflicts of authorities between
the regional offices and organization units that have been established for
performance of certain administrative matters within the authority of the
republic administrative unit.
Article 29
The
conflicts of authorities between two or more republic administrative units or
between the administrative units and
public organizations, and between the public organizations themselves
shall be solved by the Government of the Republic of Macedonia.
Article 30
(1) In case two units declare themselves as
authorized or unauthorized for deciding on the same administrative issue, then
the proposal for settlement of the conflict of authorities shall be given by
the unit that last decided on its authority, or the proposal may be given by
the party (the plaintiff or the defendant).
(2) The unit that decides on the conflict of
authorities shall, at the same time, cancel the decision made on the
administrative issue by the unauthorized unit, or, shall cancel the resolution
of the authorized unit by which it declared itself as unauthorized and submit
the documents of the case to the authorized unit.
(3) No special appeal shall be lodged or no
special administrative proceedings shall be taken by the party against the
decision that settles the conflict of authorities.
(4) The provision of Article 23, paragraph 3
herein shall apply accordingly in case of conflict of authorities.
Article 31
(1) The unit in conflict shall have the
right to lodge an appeal if it considers that some of its rights were violated by the decision regarding the
conflict of authority.
(2) If the unit authorized for making a
decision regarding the appeal stated in the pervious paragraph should find that
the decision made on the conflict of authority was against the regulations, the
unit shall settle the resulting relations between the complainant unit and the
unit that was declared as authorized by the jurisdiction court, taking into
account the rights pertaining to the complainant according to the regulations.
The decision adopted regarding the appeal shall be considered as first instance
decision.
(3)
The appeal stated in paragraph 1
above and the decision adopted shall have no effect on the administrative
procedure for the specific issue.
5. Official
person authorized to administer the procedure and adopt decisions
Article 32
(1) The supervisor of the administrative
unit authorized to decide on administrative issues shall adopt the decision
regarding the administrative procedure, unless otherwise determined by the
regulations of the unit or by other special regulations.
(2) The supervisor may authorize other
official person in the same unit to decide on a specific kind of administrative
issue.
(3) The authorization also covers the
administering of the procedure prior to adopting the decision.
Article 33
(1) In case of managing boards, the decision
shall be adopted by the managing board, unless it is determined by law or by a
decision of the municipality or the City of Skopje that the president of the
managing board shall adopt the decision in the administrative procedure.
(2) The managing board, pursuant to law, or
regulation based on law, or a decision of the municipality or the City of Skopje,
may authorize an official person in the same unit to adopt decisions in the
administrative procedures.
Article 34
(1) If the administrative issue falls within
the jurisdiction of the Assembly of the Republic of Macedonia or the
Municipality Council i.e. the City of Skopje, or the Government of the Republic
of Macedonia or the executive board the local units, then the procedure shall
be administered by the administrative unit authorized for the issue, unless it
is determined by a regulation that another unit should administer the
procedure.. The provision of Article 36, paragraph 2 of this law shall refer to
such unit.
(2) In the case described in the previous
paragraph, the unit i.e. the official person that administered the procedure
shall submit a written report and a proposal for decision to the authorized
unit, unless it is determined by other regulations that such report shall be
submitted by a committee or other administrative unit.
(3) The provisions given in the previous
paragraph shall apply to the decisions adopted by units of second instance.
Article 35
For
the administrative issues that are in the authority of an enterprise,
institution, fund or other organization or community, the decision shall be
adopted by the appropriate unit, i.e. the person that has the appropriate
office, unless other unit or person is determined to decide on such issues
within the organization or the community in accordance with the law or by other
regulation based on law, i.e. by the general rules and regulations of that
organization or the community.
Article 36
(1) The supervisor of the unit may authorize
other expert official person within the unit to undertake activities in the
procedure prior to adopting the decision.
(2) If such authorization has no
limitations, the specified official person shall have the authority to perform
all activities in the procedure, except adopting decisions or resolutions that
would prevent further administering of the procedure.
6. Legal
Assistance
Article 37
(1) In case the administrative unit has to
perform certain activities in the procedure out of its region of authority,
then the unit shall ask the administrative unit where such activities have to
be performed to execute such activities.
(2) For the purpose of easier and efficient
performance of the activities or in order to avoid unnecessary expenses, the
unit authorized to make decisions on administrative issues may assign the
performance of certain activities in the procedure to other appropriate unit authorized
for such activities.
Article 38
(1) The administrative units, as well as the
enterprises, institutions, other organizations, funds and communities, public organizations and associations of
citizens that have public authorization to make decisions on
administrative issues, shall be obliged
to provide to each other legal assistance in the administrative procedures.
They shall ask for assistance by submitting a request.
(2) The unit that was asked for assistance,
as well as the organization in paragraph 1 of this Article, shall be obliged to
act according to the request within the limits of their region and scope of
their duties, without delay, latest by 30 days from the receipt of the request.
(3) Legal assistance for performance of
certain activities in the procedure may be asked by the courts, but only within the frames of special
regulations. As an exception, the
administrative unit, as well as an organization that has public authorization
to make decisions on administrative issues may ask the courts to provide them
with the documents required for administering the procedure. The courts shall
be obliged to act in accordance with such request if it does not prevent the
court proceedings. The court may determine the term in which such documents
have to returned.
(4) If legal assistance has to be asked from
foreign agencies, then the provisions of the international agreements shall be
valid. In case of no specific provisions in this regard, the principle of
reciprocity shall be valid. If the principle of reciprocity is questioned, then
the administrative unit authorized for foreign affairs shall provide an
explanation. In such case, the authorized
unit shall ask for an explanation through the appropriate administrative
unit authorized for judiciary issues.
(5) The local agencies shall provide legal
assistance to foreign agencies in the way stipulated by the local law. The
agency shall have the right not to give any legal assistance if the required
activity is contrary to the public order. The requested activity may be
performed according to the instructions of the foreign agency, if such
procedure is not contrary to the public order.
(6) In case the international agreements do
not stipulate direct contact with the foreign agencies, the administrative
units shall communicate with the foreign agencies through the administrative
unit authorized for foreign affairs.
7.
Exemptions
Article 39
The
official person authorized to adopt decisions or to perform certain activities
in the procedure shall be exempted from the activities of the procedure if:
(1) the official person is involved in the
procedure in the capacity of a party, co-authorized person, witness, legal
assessor, or legal counsel of the party;
(2) the official person is immediate family
with the party, the legal counsel or the authorized person , or related up to
and including the fourth cousin, or married or related by marriage, up to and
including the second cousin, even if the marriage was annulled;
(3) the official person is a guardian,
related by adoption or supporter of the
party, the legal counsel or the party’s authorized person;
(4) in the first instance procedure the
official person participated in the administering of the procedure or in the
adoption of the decision.
Article 40
In
case the official person that should decide on certain administrative issue or
take action pursuant to the procedure determines that there is a reason for
exemption stated in the provisions of Article 39 herein, the official person is
obligated to stop any further activities regarding the specific case and advise
the agency authorized to decide on the exemption. If the official person
considers that there are other circumstances that justify his/hers exemption,
then he/she shall advise the same agency not interrupting the procedure.
Article 41
(1) The party may require exemption of the
official person for reasons stated in Article 39 in this law, or when there are other circumstances that
question his/hers impartiality. In the request, the party must state the
circumstances that justify the reason for the exemption.
(2) The official person for whom there is a
request for exemption submitted by the party for reasons stated in Article 42
(39) in this law, shall not perform any activities regarding the procedure,
except those that cannot be delayed, until the final resolution is adopted
regarding the request.
Article 42
(1) The supervisor of the administrative
agency shall decide on the exemption of the official person.
(2) The Government of the Republic of
Macedonia shall decide on the exemption of a manager (supervisor) of an
administrative agency.
(3) A unit nominated by a Republic
regulation shall decide on the exemption of an official person or high official
(manager) that manages the administrative unit.
(4) The president of the republic managing
board shall decide on the exemption of an official person from the managing
board. The republic managing board shall decide on the exemption of a member of the managing board and the Government
of the Republic of Macedonia shall decide on exemption of the president of the
republic managing board.
(5) The decision for an exemption of an
official person in the unit of local self-government in the municipalities of
the City of Skopje shall be made by the unit nominated in accordance with the
municipality’s decision i.e. the City of Skopje.
(6) A final resolution shall be adopted
regarding an exemption.
Article 44
(1) The provisions of this law referring to
the exemptions shall equally apply to the recording person.
(2) The final resolution on exemption of the
recording person shall be adopted by the official person that administers the
procedure.
CHAPTER III
THE PARTY AND LEGAL COUNSEL OF THE PARTY
1. Party
Article 45
A
party is a person that requires administering of a procedure or a person
against who a procedure is being administered, or who has the right to
participate in a procedure in order to protect his/her rights or interests.
Article 46
(1) Any person or legal entity may be a
party in an administrative procedure.
(2) Any public unit, business unit in an
organization and community, settlement,
group of persons and other which are not considered as legal entities
may be a party if they can be considered as bearers of the rights and
liabilities that are subject of the administrative procedure.
(3) A union organization may be a party if
the administrative procedure refers to a right or legal interest of the
employees in the enterprises (companies), institutions, other organizations and
units.
Article 47
(1) Any enterprise (company), institution,
organization and unit, public organization and association of the citizens
that, pursuant to their rules and regulations, have an obligation to protect
certain rights and interests of their members, may, by consent of its member,
submit a request on his/her behalf regarding such rights and interests, or they
may be involved in the already initiated procedure bearing all the rights of
the party.
(2)
The enterprise (company),
institution, other organization and unit may represent the employee on his/hers
request if their rules and regulations
stipulate that possibility.
Article 48
(1)
If the public prosecutor, the
public attorney and other public agencies are authorized by law to represent
the public interests in the administrative procedure then they, within the
limits of their authorizations, shall have
the rights and liabilities of a party.
(2) The agencies stated in paragraph 1 above
shall not have wider authorizations than those of the parties, unless such
authorizations are stipulated by law.
2. Legal
Capacity and Legal Counsel
Article 49
(1) Any party that has full working
abilities may perform all activities in the procedure (legal capacity).
(2) Any person that has no legal capacity
shall be represented by a legal counsel who will perform all activities during
the procedure. The legal counsel shall be determined pursuant to a law or an appropriate deed of the authorized
government unit enacted on the basis of a law.
(3) Any legal entity shall perform the
activities in the procedure through its representative i.e. legal counsel. The
representative i.e. the legal counsel of the legal entity shall be determined
on the basis of a general rules and regulations, unless otherwise determined by
law or by rules and regulations of the authorized government unit based on a
law.
(4) Any
government unit shall perform the activities in the procedure through
the representative determined by law, and any unit of an organization or
community - through the person that manages the unit. Any settlement or groups
of persons that have no capacity of a legal person shall perform the activities
in the procedure through a person that they will determine, unless otherwise
determined by special regulations.
(5) In case the unit that administers the
procedure finds that the legal counsel of a person under custody (guardianship)
does not give the due attention to the representation, the unit shall inform
the guardianship unit.
Article 50
(1) During the course of the whole
procedure, the unit shall have an official duty to monitor whether the person
that appears as a party has a legal capacity of a party and whether the party
has a legal counsel.
(2) In case of death of the party during the
course of the procedure, the procedure may be stopped or continued, depending
on the nature of the administrative issue that is subject of the procedure. If
the nature of the procedure does not
allow continuation, the unit shall stop the procedure bringing a final
resolution. A special appeal may be lodged against such resolution.
3. Temporary
Legal Counsel
Article 51
(1) In case the party has no legal capacity
and no legal counsel, or in case an action has to be taken against a person
whose residence is unknown and has no legal representative, the unit that
administers the procedure shall appoint a temporary legal counsel if the case
is urgent and the procedure must be administered. The unit shall immediately
inform the guardianship unit of the appointment of a temporary legal counsel.
In case of a person whose residence is unknown, the final resolution shall be
made known in the usual way.
(2) In case an organization or a community
has no legal counsel, representative or authorized person, the unit that
administers the procedure shall appoint a legal counsel to such party, under
the conditions stated in paragraph 1 above. Generally, the legal counsel shall
be chosen among the officials in the organization or community and shall advise
the organization or the community of the appointment without delay.
(3) The same mode of appointment stated in
paragraphs 1 and 2 above, shall be
applied in case of urgent action that has to be performed, and the party i.e.
its legal representative or legal counsel cannot be summoned on time. The
party, the representative or the legal counsel shall be informed of such case
immediately.
(4) The appointed person is obliged to
accept the representation. Such representation may be denied only in cases
stipulated by special rules. The temporary counsel shall participate only in
the procedure for which he/she was explicitly appointed, and only until the
appearance of the legal counsel or representative or the party itself or its
representative.
4. Joint
Representative
Article 52
(1) Two or more parties may appear jointly
in the same case, unless otherwise stipulated by special rule. In such case,
they are obliged to designate who of the either shall act as joint
representative, or they should appoint a joint representative.
(2) The unit that administers the procedure
may, unless prohibited by special rule, bring a resolution by which the parties
that participate in the procedure and have the same requests shall be obliged
to designate, within a determined term,
who among them will represent them, or to appoint a joint
representative. If the parties do not act accordingly, the representative may
be appointed by the unit that administers the procedure. In such case, the joint
representative or authorized person shall have that capacity until the parties
appoint their own representative. The parties shall have the right to lodge an
appeal against the resolution of the unit, however, the appeal shall not
exclude the enforcement.
(3) Even in the case of appointing a joint
representative i.e. authorized person, each party shall have the right to act
as a party in the procedure, to give statements and independently lodge appeals or use other legal remedies.
5.
Authorized person
Article 53
(1) The party or its legal counsel may
appoint an authorized person who shall act as representative in the procedure,
except in cases when it is necessary the party itself to give statements.
(2) The actions in the procedure that are
taken by the authorized person, within the limits of the authorization, shall
have the same effect as if taken by the party itself.
(3) Besides the authorized person, the party
itself shall have the right to give statements, especially in cases when the
party has to give a direct statement.
(4) In cases when the party is not present
while its authorized person gives an verbal statement, the party has the right,
immediately upon the given statement, to change or cancel the statement given
by the authorized person. If there is a discrepancy in the facts of the written
or verbal statements given by the party and its authorized person, the unit
that administers the procedure shall assess both statements pursuant to the
provisions in Article 9 in this Law.
Article 54
(1) Any person that has full working
abilities can be an authorized person, except persons that are pretending to be
experts.
(2) In case it is determined that the
authorized person is pretending to be expert, the government unit shall deprive
him/her of any further representation and inform the party thereof immediately.
(3) An appeal can be lodged against the
resolution to deprive the person of further representation. Such appeal shall
not postpone the enforcement of the resolution.
Article 55
(1) The authorization may be written or
verbal. The verbal authorization shall be entered into a register. It shall be
entered into the case file that the authorization is verbal.
(2) An illiterate party or a party that is
not able to sign, shall put an index fingerprint on the written authorization instead of a signature. If the
authorization is given to a person that is not an authorized person, then the
authorization shall be given in the presence of two witnesses that will sign
the authorization.
(3) In exceptional cases, the official that
administers the procedure or performs certain activities during the procedure
may allow the members of the party’s family or household, persons that work
together with the party or officials, to perform certain activities on behalf
of the party even without authorization, if those persons are well known and
there is no doubt of the existence and scope of the authorization. In case such
person requests administering a procedure or if during the procedure such
person gives a statement that is contrary to the previously given
statement, then he/she shall be asked
to present a document for authorization in a due term.
Article 56
(1) If the authorization was given in a form
of a private document and there is a doubt of its authenticity, then it shall
be required such authorization be validated.
(2) The validity of an authorization shall
be investigated ex officio. Any faults of the written authorization shall be
removed in accordance with the provisions of Article 64 in this Law. The
official that administers the procedure may allow the authorized person with
the invalid authorization to perform the urgent activities in the procedure.
Article 57
(1) The provisions of the authorization
determine its contents and scope. The authorization may be valid for the whole
procedure or only for separate activities and it may be limited in time.
(2) The authorization shall be still valid
even in case of death of the party, loosing its legal capacity or change of its
legal counsel. However, the party’s legal successor i.e. its new legal counsel
may annul the previous authorization.
(3) The issues regarding the authorization
that are not covered by the provisions of
this law, shall be governed pursuant to the provisions of the Law on
Civil Procedure.
Article 58
The
provisions of this law that refer to the parties shall be accordingly
valid
for their legal counsel, authorized
persons, temporary representatives and joint representatives.
Article 59
(1) The party shall be allowed to bring an
expert (expert assistant) who will give information and advice regarding expert
issues in the procedure. Such person does not represent the party.
(2) The party shall not bring an expert
assistant who has no working capabilities or who is pretending to be expert.
CHAPTER IV
COMMUNICATION BETWEEN THE UNITS AND THE PARTIES
1. Documents
Article 60
(1) Documents shall mean requests, forms
used for automatic data processing, proposals, notifications, applications,
appeals, complaints and other information that the individuals or legal
entities i.e. organizations submit to the units.
(2) Generally, the documents shall be
submitted directly or sent by mail in a written form, or verbally presented and
entered into a register. Unless otherwise stipulated, the documents may be
submitted by cable. Brief and urgent information may be given by phone, if the
nature of the work allows that.
Article 61
The
document shall be submitted each working day during the working hours to the
unit authorized to receive such document. The verbal documents that have no
time limit or are not urgent may be given in previously determined hours during
the working hours. The time determined for such verbal documents shall be
announced by each unit on a clearly visible spot in the unit’s premises.
Article 62
(1) The unit authorized to receive the
document i.e. the verbal information shall be obliged to receive the submitted
document i.e. to register the verbal information.
(2) The recipient employee shall, upon a
personal verbal request of the plaintiff, certify receipt of the document. No
tax shall be imposed on such certification.
(3) In case the unit is not authorized to
receive the written document, i.e. the registered verbal information, the
official person in that unit shall warn the plaintiff thereof and advise
him/her on the authorized unit. However, if the plaintiff, despite the warning,
requests his/her document to be accepted, the employee shall be obliged to
accept such document i.e. verbal information. If the unit finds that it is not
authorized to take any action regarding the document, then the unit shall adopt
a resolution by which it shall reject the document.
(4) If the unit receives a document by mail
and it is not authorized for such document, then the unit shall immediately
mail the document to the authorized unit or to the court and shall advise the
party thereof. In case the unit that received the document cannot determine
which unit is authorized to act
according to the document, then the unit shall adopt a resolution and reject
the document ad unauthorized. The resolution shall be submitted to the party
without a delay.
(5) The party shall have the right to lodge
an appeal against the resolution stated in paragraphs 3 and 4 above.
(6) In case the unit receives a complaint
for initiating an administrative procedure by mail, then it shall submit the
complaint to the authorized court
immediately and advise thereof the plaintiff.
Article 63
(1) The document shall be clear and include
all necessary data so it can be acted in accordance with the request stated in
the document. The document shall especially state: the unit to which it was
addressed, the subject of the request or the proposal, the name of the legal
counsel or authorized person, if any, as well as the name and address of the
plaintiff i.e. the legal representative or the authorized person.
(2) The plaintiff shall personally sign the
document. In exceptional cases, instead of the plaintiff, the document may be
signed by the plaintiff’s spouse, either of his/her parents, his/her son or
daughter or the attorney that was authorized by the plaintiff to write the
document. The person that signed the document instead of the plaintiff shall
write his/her full name and address at the end of the document.
(3) In case the plaintiff is illiterate or
unable to sign the document, then the document shall be signed by a literate
person stating his/her full name and address.
Article 64
(1) The document may not be rejected only
for the fact that it contains formal fault that prevents any action pursuant to
the document, or if the document is unclear or incomplete. The unit that
received such document shall take all necessary steps to correct the faults and
determine a term in which the plaintiff is obliged to remove the fault. The
plaintiff may be advised of the faults by phone, or verbally if he/she happens
to be present when the unit determines the fault. The unit shall make a note on
the document that the plaintiff was advised of the fault.
(2) If the plaintiff corrects the faults
within the term determined, then the document shall be considered as correct.
In case the plaintiff fails to remove the faults within the term determined,
thus preventing any action pursuant to the document, the document shall be
considered as not submitted. Consequently, the unit shall adopt a resolution
against which an appeal can be lodged. The plaintiff shall be explicitly warned
against such a consequence in the notice for correction of the fault.
(3) If the document was sent by cable or if
an information was given by phone and there is any doubt that the document has
actually been submitted by the person stated on the document sent by cable,
i.e. that the information given by phone was actually given by the person that
indicated his/her name, the authorized unit shall administer a procedure to
determine these facts. In case the faults are not corrected it shall be acted
pursuant to the provisions stated in paragraph 2 to this Article.
Article 65
If
the submitted document states several requests that have to be settled
separately, the unit that receives the
document shall administer those requests that are within its authorization.
Regarding the remaining requests, the unit shall act pursuant to the provisions
of Article 62, paragraph 4 herein.
2. Summons
Article 66
(1) The unit that administers the procedure
shall be authorized to summon the person that needs to attend during the
procedure and resides within the region of the unit. Generally, the purpose of
the summons may not be delivery of copies of written decisions and resolutions
or giving information. The information may be submitted by mail or some other
way which is more convenient for the person to whom the information should be
given.
(2) In exceptional cases, the person who
resides out of the region of the unit may be summoned to participate in a hearing
if such summoning would accelerate or facilitate the procedure and if the
coming of the summoned person would not cause significant expenses or losing
time for that person.
(3) The summoning shall be done by written
invitation, unless otherwise stipulated.
Article 67
(1) The written invitation shall state: name
of the unit that issued the summons, name and address of the summoned person,
place, date and, if possible, the hour of his/her coming, the case for which
the person is being summoned and in what capacity (as a party, witness, expert
legal assessor, etc.) and what documents or evidence the summoned person should
bring with him/her. The invitation must state whether the summoned person is
obligated to come in person or he/she can send an authorized person to
represent him/her. The summons must clearly state that in case the summoned
person is prevented to come he/she is obliged to advise the unit that issued
the summons. The summoned person must also be warned of the legal consequences in
case of not responding to the summons or in case of not informing the unit of
his/hers prevention to come.
(2) The party may be asked to submit written
or other evidence when summoned regarding a hearing or he/she may call
witnesses.
(3) If the nature of the case allows, the
summoned person may, at his preference, submit a written statement, within a
determined term, instead of coming personally.
Article 68
(1) The unit shall ask the presence of the
summoned person at a time that would not hinder his/her regular work.
(2) No person can be summoned during the
night, except in urgent cases.
Article 69
(1)
The summoned person shall be
obliged to reply to the summons.
(2) In case the summoned person is hindered
to come due to illness or other justifiable circumstances, the person is
obliged to immediately advise the unit that issued the summons and if such
circumstances occurred later, the person shall advise the unit immediately upon
the occurrence of such circumstances.
* (3) If the person to whom the summons was
handed over in person (Article 83) does not respond or gives no justifiable
reasons for not responding or not coming, the person may be taken by force and
also pay a fine up to 500 denars. Such measures shall be taken only if they were
indicated on the summons. In case of additional charges in the procedure due to
unjustified absence of the summoned person, such charges may be imposed on the
summoned person. The resolution for forced presence or for imposing a fine or
payment of charges, shall be passed by the official that administers the
procedure in accordance with the official
authorized for adopting the decision, and in case of an unit asked to help - in accordance with the supervisor of that
unit, i.e. the official authorized to make decisions in such cases. An appeal
can be lodged against such resolution.
(4) In case a military officer or an
employee in the police is summoned and does not respond, the unit shall address
the commander of that person and request that he/she be brought. Pursuant to
paragraph 3 of this Article, the unit might impose a fine or order payment of the expenses.
3. Records
Article 70
(1) A record shall be made on any hearing or
other important activities in the procedure, as well as on important statements
given by the parties or third persons in the procedure.
(2) Generally, no record shall be made on
less important activities and statements of the parties and third persons that
do not affect significantly the decision, the administering of the procedure,
the information, the official records, verbal instructions and findings, as
well as the circumstances that concern only the activities of the unit that
administers the procedure. In such cases a note shall be made on the document
itself signed by the employee that made the note and the date shall be
indicated. No records shall be made on the verbal requests of the parties that
shall be settled on the spot. Such requests shall be noted in an appropriate
way (Article 292, paragraph 3).
Article 71
(1) The record shall include: the name of
the unit that performs the activity, the place where the activity is performed,
day and hour, the names of the officials and
the parties and their legal representatives or authorized persons that
are present.
(2) The record shall state correctly and
briefly the course and the contents of the procedure, the activities performed
and the statements given. The record shall be focused on the subject of the
procedure. All documents used for any purpose whatsoever during the hearing
shall be entered into the record. If necessary, such documents shall be
enclosed to the record.
(3) If the statements of the parties, the
witnesses, the expert legal assessors that participate in the procedure that
are important for the decision, shall be entered into the record, as precisely
as possible, and, if necessary, in their
exact words. Any resolution adopted during the procedure shall be
entered in the record.
(4) If the hearing is performed through a
translator, it shall be entered into the records what was the language of the
person that gave the statement and who as the translator.
(5) The record shall be made during the
course of the hearing. If the hearing was not completed the same day, each
consecutive day of the hearing shall be entered in the record with all the
statements given on the particular day, duly signed.
(6) If the activity for which record is made
could not be performed consecutively, it shall be entered in the record that
the activity was interrupted.
(7) If sketches, drawings, photographs
designs were made during the course of the activity, they shall be registered
and enclosed in the record.
(8) Rules may be adopted so that the record
on certain activities may be made in the form of a book or other kinds of
record keeping.
Article 72
(1) The record shall be clear and nothing
may be erased. The paragraphs that have been crossed out shall stay legible and
verified by the signature of the official that administers the activities of
the procedure.
(2) Nothing shall be added or changed in the
already signed record. Any additional data may be entered in the supplement of
he record.
Article 73
(1) Prior to concluding, the record shall be
read to the heard persons and to the other persons that participate in the
procedure. The persons shall have the right to look over the record personally
and to give their remarks. At the end
of the record it shall be stated that the record has been read and that no
remarks were made, or, in case there were any remarks, the text of the remarks
shall be entered. The record shall then be signed by the person that
participated in the hearing or activity and certified by the official that
administered the hearing or activity and by the recording clerk, if any.
(2) If the record includes hearings of
several persons, each of these persons shall sign under the statement given.
(3) If there is confrontation of
witnesses, the persons that were
confronted shall sign their statements in the record.
(4) If the record contains several pages,
each page shall be indicated by a number, and
each page shall be signed by the official that administers the procedure
and the person whose statement is written on that page.
(5) Any supplement of the record shall be
signed and certified.
(6)
In case the person that has to sign
the record is illiterate or is not able to write, the record shall be signed by
another person that shall also sign the record. The official that administers
the procedure or the record clerk cannot sign the record instead of the
illiterate person.
(7) In case any of the persons is not
willing to sign the record or leaves prior to the conclusion of the record,
then this shall be entered together
with the reason for which the record was not signed.
Article 74
(1) The record made in accordance with the
provisions of Article 73 of this Law shall be considered as public document.
The record is a proof of the course and the contents of the procedure and of
the statements given, except for those parts of the record on which the person
made a remark as not correct.
(2) The correctness of the record may be
contested.
Article 75
(1) If the decisions in the administrative
procedure are adopted by a managing board, the discussion and the voting on the
decision shall be entered into special record. In case there is an unanimous
decision in a procedure initiated by an appeal, the discussion and the voting
may not be entered into a record, but a note shall state that it was an
unanimous decision.
(2) Apart from the data on the composition
of the managing board, the record made on the discussion and the voting shall
include the subject of the procedure and
a summary of the decision, as well as different opinions of the members,
if any. Such record shall be signed by the president of the managing board and
the record clerk.
(3) In cases when the Assembly of the
Republic of Macedonia or the units of the Self-Government i.e. their executive
units are authorized to decide in the administrative procedure, no special
record shall be made on the discussion and the voting, but only the resolutions
concerning the administrative procedure shall be entered in the record, as well
as the other resolutions of the units.
4.
Examination of Documents and Information in the Course of the Procedure
Article 76
(1) The parties shall have the right to
examine the documents of the case and to copy the documents they need at their
own cost. The examination and the copying of the documents shall be made under
the supervision of an official person.
(2) Any person who has a justifiable
interest to examine the documents shall have the right to do that and copy them
at his/her own expense. The public organizations and expert associations, if
they have justifiable interest, shall also have the right to examine and copy
the documents.
(3) The request to examine and copy the
documents may be made in person. The unit may require the person to give a
written or verbal statement and justify his/hers legal interest. Such statement
shall be entered into the record.
(4) The following documents shall not be
examined or copied: the record on the discussion and voting, official documents
and draft decisions, and other documents that are considered confidential, if such action would frustrate
the purpose of the procedure, or if it is against the public interest, or the
interest of the party or third persons.
(5) The party or any other person that shall
have justifiable interest in the procedure, as well as the interested
government units shall have the right to get information for the course of the
procedure.
(6) In case some of the requests stated
above have been rejected, a special appeal shall be allowed even in the case
when the resolution was not given in written. The appeal may be lodged
immediately.
CHAPTER V
DELIVERY
Article 77
(1) Generally, the delivery of the written
document (summons, decision, resolutions and other official documents) shall be
done by handing over the document to the person to whom it was addressed.
(2) Delivery shall be made by mail or by a
process server. The person to whom the document should be delivered may be
summoned only in exceptional cases when the nature or the importance of the
written document requires that.
(3) The way of delivery shall be determined
by the unit that issued the written document.
Article 78
(1) Delivery shall be made in working days
only, and during the day.
(2) The unit that issues the written
document may deliver it on Sunday or on national holidays, or even during the
night on urgent occasions.
(3) Delivery by mail may be done on Sundays
or on national holidays.
Article 79
(1) Generally, delivery shall be made to the
apartment of the person to whom the written document was addressed or to the
office or work shop where the person is employed.
(2) Delivery may be made out of the premises
stated in paragraph 1 to this Article if the person to whom delivery should be
made agrees to accept the written document. In case no premises exist, the
delivery may be made wherever the person finds himself.
2. Indirect
Delivery
Article 80
(1) If the person to whom the written
document should be delivered is not in his apartment, delivery shall be made to
an adult person in his family. In case no one of his family is present, then
the delivery shall be made to the housekeeper or to the neighbor if they agree
to accept the document.
(2) If the delivery is made at the office
where the person works, and the person is not present there, delivery shall be
made to his/her colleague if the colleague accepts the document. Delivery to an
attorney may be done also by submitting the document to the person employed at
the attorneys office.
(3) The delivery stated in paragraphs 1 and
2 of this Article, cannot be made to a
person that participates in the procedure as an opposed party.
Article 81
(1) If the person to whom delivery should be
made is not present and the persons stated in Article 80 herein cannot deliver
the written document on time, the document shall be returned to the unit that
issued it, stating a note where the person is.
(2) If the whereabouts of the person cannot
be determined, the unit that issued the
written document shall nominate a temporary legal representative,
pursuant to Article 55 of this Law. The written document shall be delivered to
the representative.
Article 82
(1) If the delivery cannot be made in the
way stipulated in Article 80 of this Law, and it was not determined whether the
person to whom the delivery should be made is absent, the process server shall
deliver the written document to the authorized unit in the municipality where
the person lives, or, if delivery is made by mail, to the post office in the
region where the person lives. The process server shall leave a note at the
door of the apartment, the office or the work shop informing the person to whom
the document should be delivered where he/she left the written document. The
process server shall sign the note and state, on the note and on the written
document, the reason why he/she delivered it in that way.
(2) By putting the note on the door, the
delivery shall be considered as executed. If such note was later damaged or
torn apart, the document shall still be considered as delivered.
(3) The unit that issued the written
document shall be informed of the way of delivery stipulated in paragraph 1
above.
3.
Obligatory in Person Delivery
Article 83
(1) In person delivery of written documents
shall be made to the person to whom the document was issued in the following
cases: if such delivery is stipulated by the present Law or other regulation,
if certain term starts to expire form the day of delivery, or if such delivery
has specifically determined by the unit that instructed the delivery. If the
delivery has to be made to an attorney, the document shall be considered as
delivered in person if it was handed over to the employee in the attorney’s
office.
(2) In case the person to whom the document
should be delivered in person is not at his/her apartment, office, work shop or
attorney’s office, nor the employees that work there, the process server shall
get an information when and where to find him/her. The process server may leave
a written information to the persons stated in Article 80 herein, stating the
date and hour on which the person should be in his/hers apartment or office in
order to receive the written document. If the person to whom the written
document should be handed over is not at the apartment or the office at the
previously determined date and hour,
the process server shall act in the way stipulated in Article 82 herein
and the delivery shall be considered as executed.
(3) If the written document is delivered to
the legal representative, authorized person or to the person authorized to
receive mail (Article 85), the document shall be considered as delivered in
person.
4. Special
Cases of Delivery
A) Delivery
to the Legal Representative and the Authorized Person
Article 84
(1) The delivery to the legal representative
or to the authorized person, if the party has any, shall be made in the way
stipulated by the provisions in Articles 77 to 83 of this Law.
(2) If several parties have joint legal
representative or authorized person for the same case, the delivery for all
parties shall be made to the legal representative or authorized person. If the
party has several authorized persons, the delivery shall be made only to one of
them.
B) Delivery
to the Person Authorized to receive Written Documents
Article 85
(1) The party may authorize a person that
shall receive all deliveries. The party shall advise the unit that administers
the procedure of the authorization of such person and all deliveries shall be
made to that person.
(2) The authorized person shall immediately
submit to the party any document that he/she receives.
(3) In case the direct delivery to the
party, to the authorized person or to the legal representative would
significantly slowdown the procedure, the official that administers the
procedure may instruct the party to assign, within a certain term, an authorized
person to receive the written documents in the region of the unit. If the party
does not act in accordance with such instruction, the unit may act pursuant to
Article 51 of this Law.
(4) If the party or its legal representative
is out of the country, and has no authorized person in the Republic of
Macedonia, at the delivery of the first written document they will be asked to authorize a person, within
certain period, that shall receive the written documents. The unit shall notify
the party or the legal representative that if they do not authorize a person
that shall receive the written document, such person i.e. temporary
representative shall be officially
nominated by the unit.
(5) By the delivery of the written document
to the person authorized to receive such documents it shall be considered that
the delivery was made to the party.
Article 86
(1) In case more than one party participates
in the procedure with the same requests and they have no joint authorized
person, they shall be obliged to notify the unit who will be their joint
authorized person that will receive the written documents, if possible, within
the region of the unit. The party that signed first on the joint document
submitted to the unit shall be considered as authorized person until the
nomination of a joint authorized person. In case no joint authorized person is
nominated, the official that administers the procedure may nominate any party
among the joint parties to act as a joint authorized person. In case the number
of the parties is large or they come form different places, the parties may
nominate i.e. the official may designate more such authorized persons and to
determine which parties each of them will represent.
(2) The joint authorized person is obliged
to inform immediately all the parties for the written document that he/she
received and to enable them to see, copy and certify the written document.
Generally, the written document should be in the possession of the party.
(3) The written document that is delivered
to the authorized person shall include the names of all persons to which
delivery is made.
C) Delivery
to the Government Units, Organizations and Communities
Article 87
(1) Deliveries to the government units,
organizations and communities shall be made by handing over of the written
document to the official or a person
designated to receive written documents, unless otherwise stipulated for
certain cases.
(2) In case business units, settlements,
group of persons and others participate in the procedure (Article 46, paragraph
2), delivery shall be made by handing over of the written document to the
person that was nominated by such parties (Article 49, paragraph 4).
(3) In case the process server, within a
certain time, cannot find a person designated to receive the written documents,
such documents may be handed over to any of the employees in that unit or
organization that will be present there.
D) Deliveries
to Other Persons
Article 88
(1) Delivery to persons and institutions abroad, as well as to persons that have
a diplomatic immunity shall be made through the government unit that is authorized for foreign affairs, unless
otherwise stipulated by international agreements.
(2) Delivery of documents such as: extracts
of the registry books, certificates, and other documents issued at the request
of citizens of the Republic of Macedonia who live abroad, may be made through
the diplomatic and consular offices of the Republic of Macedonia abroad.
(3) Delivery to military persons, police
officials and employees of the land, river, sea and air transport may be made
through the unit or the organization where they are employed.
Article 89
(1) Delivery to persons that are imprisoned
shall be made through the administration of the institution they are imprisoned
in.
E) Delivery
by Public Announcement
Article 90
If
the procedure involves a larger number of persons which are not known to the
unit or cannot be determined, the delivery shall be made by a public
announcement on the notice board of the unit that issued the written document.
Such delivery shall be considered as executed after the expiration of 15 days
from the day of putting the announcement on the notice board, unless the unit
that issued the written document determines a longer term. Beside putting the
announcement on the notice board, the unit may publish the announcement in the
newspapers, other media or some other way.
F) Refusal
of Receipt
Article 91
(1) If the person to whom the written
document should be delivered or a member of his family refuses to receive the
document, without any legal justification,
or if receipt was rejected by a employee in a government unit,
organization or community, or an attorney’s office i.e. if receipt was refused
by a person authorized to receive written documents for a settlement, group of
persons and other (Article 46, paragraph 2), the process server shall leave the
written document at the apartment or the office, or stick it on the door.
(2) If delivery was made in the way
stipulated in paragraph 1 above, the process server shall note the day, hour
and the reason for rejection of receipt, as well as the place where he/she left
the written document and the delivery shall be considered as executed.
G) Change
of Address
Article 92
(1)
In case the party or its legal
representative changes the address during the course of the procedure, they are
obliged to immediately inform the unit that administers the procedure.
(2) If such information was not given, and
the process server, despite his/her efforts, was not able to locate them, the
unit shall determine that all further deliveries for such party in the
procedure shall be made by putting the written document on the notice board of
the unit that administers the procedure.
(3) Delivery shall be considered as executed
upon expiration of 8 days after putting the written document on the notice
board.
(4) In case the authorized person or the
person authorized to receive written documents changes the address during the
course of the procedure, and fails to advise thereof the unit that administers
the procedure, delivery shall be made as if such authorized person was never
designated.
5. Delivery
Note
Article 93
(1) The receipt for executed delivery
(Delivery Note) shall be signed by the recipient and the delivery person. The
recipient shall put the date of receipt.
(2) In case the recipient is illiterate or
cannot sign, the delivery person shall write the name of the recipient, the
date of delivery and the reason why the delivery note was not signed.
(3) In case the recipient refused to sign
the delivery note, the delivery person shall write a the reason why the delivery note was not signed and the
date of delivery. Such delivery shall be considered as executed.
(4) If delivery was made to some of the
persons stated in Article 80 of this Law, the delivery person shall write the
name of the person who received the written document and the relation of that
person with the person to whom delivery was to be made.
(5) If
delivery was made pursuant to Article 86 of this Law, the day of the
announcement shall be stated on the delivery note, as well as the day of
delivery of the written document to the regional office in the municipalities
i.e. to the post office.
6. Error
in Deliveries
Article 94
(1) In case of an error in delivery, the delivery shall be
considered as executed on the day when the person to whom the written document
was addressed actually received the document.
(2) If the delivery note is missing,
delivery may be proved by other means.
CHAPTER VI
TERMS
Article 95
(1) Terms may be established for performance
of certain actions in the procedure.
(2) If such terms are not established by law
or other regulations, the official that administers the procedure shall
determine the terms depending on the circumstance of the case.
(3) The terms determined by the official
that administers the procedure and the terms established by the regulations may
be extended at the request of the interested party. Such request shall be
submitted prior to expiration and the term shall be extended if there are justifiable reasons.
Article 96
(1) The terms shall be counted in days,
months and years.
(2) If the term is determined in days, the
day on which delivery was executed or the announcement was made, i.e. the day
on which the act was performed which should be used as starting point for
counting of a term, such day shall not be counted in the term. The day that
follows shall be considered as starting point for expiration of the term. If a term
is determined in months or years, such term shall expire on the day, month or
year that by its number matches that day when the delivery was executed or the
announcement was made, i.e. the day on which the act, used as starting point
for the term, took place. If such day is not within the last month, the term
shall expire on the last day of that month.
(3) The expiration of a term may be
determined by certain calendar day.
Article 97
(1) The beginning and the course of a term
shall not be interrupted by the Sundays and the days of the national holidays.
(2) In case the last day of the term is
Sunday or a day of a national holiday or some other day when the unit that has
to perform the action in the procedure does not work, then the term shall expire
on the next working day.
Article 98
(1) A document shall be considered as
submitted in time, if it was received at the adequate unit prior to expiration
of the term.
(2) If the document was mailed by registered
mail or by cable, the day when the document was mailed shall be considered as a
day of submission of such document.
(3) The day that persons who are in the Army
of the Republic of Macedonia submitted the document to the military unit or
institution or the Headquarters shall be considered as day of submission to the
unit to which it was addressed.
(4) The day that imprisoned persons
submitted the document to the administration of the institution they are
imprisoned in shall be considered as a day of submission to the unit it was
addressed to.
(5) If the authorized unit determined the
day for hearing regarding a document that the party has to submit, and if the
party was asked to submit such document within a previously determined term,
the unit shall be obligated to consider such document that was received prior
to the hearing.
CHAPTER VII
RETURN TO A PREVIOUS STEP
Article 99
(1) In case the party, justifiably, did not
perform an action in the procedure within a term, and if such omission was the
reason for exclusion of the party from that action, the party shall have the
right to request and be approved to return to the previous step.
(2) The party that omitted to submit a
document in time shall be allowed, at his/her proposal, to return to the
previous step also in cases when the party unwillingly or by mistake submitted
a document by mail or personally to a unit which is not authorized for the
case.
(3) A return to a previous step shall be
allowed in cases when the party made an obvious mistake and failed to submit
the document in time. However, if the document was received by the authorized
unit within 3 days, at the latest, upon
expiration of the term, the party shall be allowed to return to the previous
step in order not to loose some of the rights pertaining to him/her because of
the delay.
Article 100
(1)
In the proposal to return to the
previous step, the party is obliged to state the and justify the circumstances
that lead to the delay (Article 162).
(2) The proposal to return to the previous
step cannot be grounded on circumstances that were previously assessed by the
unit as not acceptable for extension of the term or for postponement of the
hearing.
(3) If the
return to the previous step is requested due to failure to submit
certain document, such document shall be enclosed together with the proposal
submitted by the party.
Article 101
(1) The proposal to return to the previous
step shall be submitted within 8 days counting from the day of the occurrence
of the circumstances that lead to the delay, and in case the party realized the
omission even later, then counting from the day when he/she learned about the
omission.
(2) A return to previous step cannot be
requested upon expiration of three months from the day of the omission.
(3) In case of failing to observe of the
term determined for the request to return to previous step, such term cannot be
extended.
Article 102
(1) The request to return to the previous
step shall be submitted to the unit where the omitted action had to take place.
(2) The unit that had to perform the omitted
action shall adopt a resolution on the request to return to the previous step.
(3) A proposal that was not submitted within
the term shall be rejected without further procedure.
(4) In case the facts that were used as
basis for the proposal are generally known, the authorized unit shall adopt the
resolution without a statement and explanation of the party.
Article
103
(1) No appeal shall be lodged against a
resolution for returning to a previous step, except if the return was approved
on the basis of a proposal that was submitted late or ungrounded (Article 101,
paragraph 3).
(2) A separate appeal can be lodged against
a resolution for denial to return to a previous step, only if such resolution
was passed by a first instance unit.
(3) An appeal cannot be lodged against a
resolution for denial to return to a previous step if such resolution was
passed by an unit authorized to decide on second instance issues.
Article 104
(1) The proposal for returning to a previous
step shall have no influence on the course of the procedure. However, the unit
authorized to decide on such proposal may temporarily interrupt the procedure
until the resolution regarding a proposal becomes final.
(2) In case a return to a previous step is
allowed, the procedure shall be returned to that step in which was prior to the
omission, and all decisions and resolutions passed by the unit regarding the
omission, shall be annulled.
CHAPTER VIII
MAINTENANCE OF ORDER
Article 105
(1) The official that administers the action
of the procedure shall be responsible for the maintenance of order during the
work.
(2) In that sense, the official shall have
the right to warn the persons that interrupt the work and to take the necessary
steps for proper maintenance of the order.
(3) The persons that participate in an
action of the procedure must not carry any weapons or dangerous objects.
Article 106
(1) If any person, despite the warning,
keeps disturbing the work and acts indecently during the performance of the
action of the procedure, such person may be removed. The person that
participates in the action of the procedure may be removed only after a warning
that he/she will be removed and after explanation of the legal consequences of
such act. A removal, resulting from a disturbance of the order or indecency,
shall be determined by the official that administers the action of the
procedure.
(2) If any of the parties removed on the
basis of the provision stated in paragraph 1 above, has no authorized person,
or if the authorized person is removed and the authorizer is not present, the
official that administers the action of the procedure shall ask the person that
is being removed to designate his/her authorized person. If such person fails to give authorization, the
official may postpone the action and the person that refused to give
authorization shall be responsible for the charges. The official shall have the
right to designate an authorized person if it considers it necessary. Such
authorized person may represent the party only for that action of the procedure
when the party was removed.
Article 107
(1) Any person that causes a major
disturbance of the order or a serious inconvenience, may, besides the removal,
be punished with a fine of up to 5.000 denars.
(2) Such penalty shall not exclude the
criminal or disciplinary responsibility.
(3) The penalty stated in paragraph 1 above
may be imposed on a person that, by his/hers submitted document, shall cause a serious violation of the
customary conduct towards the unit or the official that administers the
procedure.
Article 108
(1) The pecuniary penalty imposed for
actions stated in Article 107, paragraph 1 of this Law, shall be determined by
the official that administer the action of the procedure, and the penalty
imposed for actions stated in Article 107, paragraph 3 shall be determined by
the unit that administers the procedure.
(2) A separate appeal may be lodged against
the resolution to impose a penalty. The appeal against a resolution to impose a penalty for disturbance of the order, shall not postpone the execution of the
penalty.
CHAPTER IX
EXPENSES OF THE PROCEDURE
1. Expenses
of the Unit and the Parties
Article 109
(1) The special expenses in cash of the unit
that administers the procedure, such as: travel expenses of the officials, the
expenses for witnesses, legal assessors, translators, inspectors and other,
that occurred during the administering of the procedure regarding an
administrative issue shall be generally covered by those persons who instituted
the whole procedure.
(2) In case the person that participates in
a procedure, by his/hers own guilt or impudence, causes expenses in certain
actions of the procedure, such person shall be responsible for covering of the
expenses.
(3) If the procedure was initiated by
official duty and if such procedure was completed favorably for the party, the
expenses of the procedure shall be covered by the government unit that
initiated the procedure.
Article 110
(1) Generally, each party shall cover
his/her own expenses that occurred during the procedure, such as: travel
expenses, loss of working days, expenses for taxi, legal representatives and
expert advise.
(2) If two or more parties having opposed
interests are involved in the procedure, the party that initiated the procedure
and lost the case, shall compensate the expenses for the opposed party to a
reasonable extent. In case some of the parties partly succeeds in their
request, that party shall compensate
for the expenses of the opposed party proportionally to that part of the
request that such party did not succeed. The party that by rudeness caused
expenses to the opposed party in the procedure, shall be obliged to compensate
such expenses to the other party.
(3) The expenses for legal representation
shall be compensated only in cases when such representation was necessary and
justified.
(4) The request for compensation of the
expenses, pursuant to the provisions of paragraphs 2 and 3 of this Article,
must be lodged on time so that the unit that administers the procedure may
decide on such request together with the final decision. The official that
administers the procedure is obliged to inform the party to make the request
for compensation in time.
(5) Each of the parties shall cover their
own expenses if the procedure was solved by settlement, unless otherwise
stipulated by the settlement agreement.
(6) The expenses of the party and other
persons caused in a procedure instituted officially or for the public interest,
and such expenses were not caused by the conduct of the party i.e. the other
persons, shall be covered by the unit that instituted the procedure.
Article 111
The
expenses of the procedure regarding the implementation shall be covered by the
party that lost the case. If such expenses cannot be charged from the party
that lost the case the expenses shall be covered by that party that initiated
the procedure.
Article 112
If
the procedure is initiated at the request
of the party and it can be anticipated with certainty that such procedure shall cause special cash
expenses (regarding the control, legal assessment, arrival of witnesses, etc.),
the unit that administers the procedure may adopt a resolution according to which
the party shall be obliged to deposit in advance an adequate amount of money
that shall cover such expenses. If the party does not deposit that amount
within a determined term, the unit may cancel research regarding the evidence
or may cancel the procedure, unless further performance of the procedure is in
the public interest.
Article 113
(1) The unit that administers the procedure
shall determine who shall cover the
charges of the procedure, the amount of the expenses and the term for payment
of the expenses. All this shall be included in the final decision that
completes the procedure.
(2) The final decision shall also state
whether the person that will cover the expenses shall also compensate the expenses of the other party (Article 110,
paragraphs 2 and 3).
(3) In case the expenses of the procedure
have to be covered by several persons, such expenses shall be divided equally
among them, i.e. according to adequate proportions.
(4) In case the unit does not decide on the
expenses, it shall make a note in the final decision that special resolution
shall be adopted regarding the expenses.
Article 114
(1) The witnesses, legal assessors,
interpreters and officials shall have the right to compensation of their
expenses, such as: travel expenses, food and accommodation, and compensation of
their daily allowance. The legal assessors and the interpreters, beside
compensation of the expenses, shall have the to a special fee.
(2) The witnesses, legal assessors and
interpreters shall make their requests for compensation i.e. fee at the
hearing, interpretation or during the expertise assessment. Otherwise they will
loose that right. The official that administers the procedure shall inform the
witnesses, the legal assessor or the interpreter of that possibility.
(3) The amount of the compensations shall be
determined by a special resolution of the unit that administers the procedure.
Such resolution shall also state who is
responsible to pay the compensations and what is the term for payment. A
separate appeal may be lodged against such resolution. The implementation shall
be a based on the resolution.
Article 115
(1) The compensation for the expenses of the
witnesses, legal assessors and interpreters, i.e. the special fees of the legal assessors and interpreters, the way
of payment and collection of the compensation and fees, as well as exemption
from payment of expenses shall be determined in accordance with the regulations
of the Republic.
(2) Regarding the compensations of the
officials, the regulations that refer to such persons shall be applied.
2.
Exemption from Payment of Expenses
Article 116
(1) The party may be, partly or completely,
exempted from payment of the expenses if the unit that administers the
procedure finds that the party cannot cover such expenses without prejudice to
the essential support of the party and his/her family. On the proposal of the
party, the unit shall adopt a resolution on the exemption, using the certificate on the possessions and
earnings of the party. Such certificate shall be issued by the authorized
municipality administrative unit or the regional office of the authorized
government unit.
(2) The exemption from payment of expenses
shall refer to exemption from taxes, charges of the unit that administers the
procedure, as well as the traveling expenses of the officials, expenses for the
witnesses, legal assessors, interpreters, control, advertisements, etc. and
exemption from advance deposit covering the expenses.
(3) The foreign citizens shall be exempted
from payment of the expenses only on the condition of reciprocity. In case of
any doubt regarding the existence of the reciprocity, an opinion shall be given
by the administrative unit authorized for foreign affairs. Regarding the
request for an opinion, the provisions of Article 38, paragraph 4 shall be
valid.
Article 117
The
unit that administers the procedure may cancel, during the course of the
procedure, its resolution on exemption of the party for covering of the
expenses if the unit determines that the reasons for such exemption of the party
no longer exist.
Article 118
The
party shall have the right to lodge a separate appeal against the resolution by
which the unit rejected exemption of the party of covering the expenses, as well as against the
resolution stated in Article 117 of this Law.
SECOND PART
FIRST INSTANCE PROCEDURE
CHAPTER X
INSTITUTION OF THE PROCEDURE AND REQUESTS OF THE
PARTIES
1.
Institution of the Procedure
Article 119
The
administrative procedure shall be instituted by the authorized unit according
to an official duty or on request of the party.
Article 120
(1) The authorized unit shall institute a
procedure by official duty in cases stipulated by law or rules based on law and
in cases when it finds that the existing circumstances are such that impose
institution of a procedure in order to protect the public interest.
(2) In case of instituting an administrative
procedure by official duty, the authorized unit shall take into consideration
the documents submitted by the citizens and organizations, if any, and the
warning of the unit.
Article 121
(1) The administrative procedure shall be
considered as instituted if the authorized unit performed any act with the
purpose to administer the procedure.
(2) If the authorized unit determines that
according to the existing regulations the request of the party is not grounded
and there are no conditions for instituting a procedure, the unit shall adopt a
resolution. A separate appeal may be lodged against such resolution.
Article 122
In
cases when, pursuant to the law or the nature of the issue, a request for
instituting and administering a procedure must be presented by a party, the
authorized unit may institute and administer a procedure only if such request
exists.
2. Joining
of Issues into one Procedure
Article 123
(1)
If the rights or responsibilities
of the parties are based on the same or similar circumstances and facts and on
the same legal grounds, and if the unit that administers the procedure has a
genuine authority, then one procedure may be instituted and administered even
if such procedure will cover the rights and responsibilities of several
parties.
(2) One or more parties, under the same
conditions, may present more different
requests in one procedure.
(3) In such cases, the authorized unit shall
adopt separate resolution for administering of one procedure. An appeal may be
lodged against such resolution, unless the resolution was adopted by the second
instance unit.
Article 124
The
authorized unit may institute an administrative procedure by public
announcement against larger number of persons that are unknown to the unit or
cannot be determined, and such persons may have the status of parties in the
procedure, if the request against them is basically the same.
Article 125
(1) In case one procedure is administered,
as stated in Article 123 above, or if the procedure was instituted by a public
announcement, as stated in Article 124 of this Law, each of the parties shall
act independently in the procedure.
(2) The resolutions adopted in such
procedure by which certain measures shall be taken against the parties, must
clearly state what measures shall be valid for each of the parties, unless if
the parties jointly participate in the procedure with identical requests or if otherwise
stipulated by law.
3. Amendment
of the Request
Article 126
(1) The party may, even after the
institution of the procedure, but prior to the final decision of the first
instance unit, supplement the request,
or present a new request instead of the previous one, notwithstanding whether
such supplemented or amended request is
based on the same legal grounds, however,
on the condition that such request has essentially the same
circumstances and facts as a basis.
(2) The unit that administers the procedure
shall adopt a resolution in case it does not allow the request to be
supplemented or changed. An appeal may be lodged against such resolution.
4. Abandonment of a Request
Article 127
(1) The party may abandon his/her request
during the course of the whole procedure.
(2) If the procedure has been instituted by
request of the party and the party abandons his/hers request, the unit that
administers the procedure shall adopt a resolution for cancellation of the
procedure. The opposed party, if any, shall be advised of the cancellation of
the procedure.
(3) In case further administering of the
procedure is necessary for the public interest, or if the opposed party
requests further administering of the procedure, the authorized unit shall
continue administering the procedure.
(4) In case the procedure was instituted by
official duty, the unit may cancel the procedure. If such procedure could have
been instituted by request of a party, the procedure shall continue if the
party requests that.
(5) An appeal may be lodged against a
resolution to cancel the procedure.
Article 128
(1) The party shall abandon his/her request
by a statement given to the unit that administers the procedure. The party may
revoke the abandonment of the request until the moment the unit adopts a
resolution for cancellation of the procedure and informs the party of such
resolution.
(2) Certain acts or omissions of the party
may be considered as his/her abandonment of the request, only in cases when
this is stipulated by law.
(3) In case the party abandoned its request
after the final decision has been made by the first instance unit, and prior to
expiration of the term for an appeal, the resolution for cancellation of the
procedure shall annul the final decision of the first instance unit, only if
such decision was made, completely or partly, in favor of the party. If the
party abandoned its request after lodging an appeal, and prior to the decision
was made regarding the appeal, the resolution for cancellation of the procedure
shall also annul the final decision of the first instance unit by which the
request of the party was, partly or completely, settled in favor of the party,
if the party completely abandoned the request.
Article 129
The
party that abandoned the request shall be obliged to cover all expenses that
occurred up to the moment of the cancellation of the procedure, unless
otherwise stipulated by special regulations.
5.
Settlement
Article 130
(1) In case two or more parties participate
in the procedure having opposed requests, the official that administers the
procedure shall endeavor, during the course of the whole procedure, to arrange
a settlement of the parties, completely or at least on certain controversial
issues.
(2) The settlement must always be precise and clear and not against the public
interest, ethics or the legal interests
of third persons. The official person that administers the procedure shall be
obliged to observe the above conditions. In case it is determined that the
settlement was made against the public interest, ethics or against the legal
interests of third persons, the unit that administers the procedure shall
reject such settlement and adopt a special resolution.
(3) The settlement shall be entered into a
record. The settlement shall be considered as concluded when the parties, after
the record on the settlement has been read to them, sign the record. The
certified copy of the record shall be submitted to the parties if they ask for
it.
(4) The settlement shall have the effect of
an executive decision in the administrative procedure.
(5) The unit that arranged the settlement
shall adopt a resolution by which, if necessary, the procedure shall be partly or completely canceled.
(6) In case the resolution for cancellation,
i.e. continuation of the procedure is not in accordance with the settlement, an
appeal may be lodged against such
resolution.
CHAPTER XI
THE COURSE OF THE PROCEDURE PRIOR TO ADOPTING THE
FINAL DECISION
A. General
Principles
1. General Provisions
Article
131
(1) All facts and circumstances relevant for
the final decision shall be determined prior to making the final decision. The
parties shall be allowed to exercise and protect their rights and legal
interests.
(2) This can be done in a shortened
procedure (urgent procedure) or in a special investigation procedure.
Article
132
(1) The official person that administers the
procedure may, during the course of the whole procedure, supplement the facts and derive evidence of
those facts that were previously not presented or have not been determined with
certainty.
(2) The official person that administers the
procedure shall instruct by official duty derivation of each piece of evidence
if he/she finds it necessary for clarification of the case.
(3) The official person that administers the
procedure shall officially gather all data and facts which can be found in the official records of the unit that is
authorized to adopt a decision. The official shall also gather data that are
officially recorded by other government units, organizations and communities.
Article 133
(1) The party shall be obliged to present
precisely, correctly and truly all facts which represent a basis for his/her
request.
(2) In case the facts are not generally known,
the party shall be obliged to give evidence and, if possible, present exhibits
for his/her allegations. If the party does not present the evidence and
exhibits, the official that administers the procedure shall ask the party to do
that. The party shall not be asked to present evidence which can be more
efficiently and easily gathered by the unit that administers the procedure, nor
to present certificates which the units are not obliged to issue, pursuant to
Article 168 of this Law.
(3) In case the party does not present the evidence within the
additionally granted term, the unit shall not have the right to reject the
request of the party as if it were not presented (Article 64, paragraph 2), but
it shall be obligated to administer the procedure and to adopt a final decision
in accordance with the rules of the procedure.
Article 134
(1) Generally, the party shall make the
statements verbally. However, the party may make written statements.
(2) If the case is complex or if extensive
expert explanation is needed, the official that administers the procedure may
instruct the party to submit a written statement, within a resonable term. In
such cases the party shall also have the right to ask for a permission to
submit written statement.
(3) If the party was instructed or allowed
to submit a written statement, such party shall not be deprived of the right to
make a verbal statement as well.
Article 135
If,
during the course of the procedure, a person that previously did not
participate in the procedure as a party requests to participate in the
procedure as a party, the official that administers the procedure shall examine the person’s right to act as a party
and adopt a resolution. An appeal may be lodged if the resolution does not
allow such capacity to that person.
Article 136
The
official that administers the procedure shall be obliged to inform the party
about his/her rights in the procedure and to indicate the legal consequences
regarding his/her actions or omissions in the procedure.
2. Shortened
Procedure (Urgent Procedure)
Article 137
(1) The unit may directly settle the issue
in a shortened (urgent) procedure if:
1) the party
furnished facts or evidence in the request that will serve as a basis for
determining the actual situation of the issue or if such position may be
determined on the basis of generally accepted facts or facts that are known to
the unit;
2) the
actual situation may be determined on the basis of official data that are
handled by the unit and there is no need for special testimony of the party for
the purpose of protection of his/her rights or legal interests;
3) there are
cases, stipulated by regulations, pursuant to which the issue may be solved on
the basis of facts or circumstances that are not completely proven or such
facts and circumstances may be proven only indirectly, so that the facts and
circumstances shall be considered as probable, and all the circumstances lead
to the conclusion that the request of the party should be solved positively;
(4) there is
a need to undertake urgent measures to protect the public interest, and the
facts that should be used as a basis for adopting the decision have been
already determined or, at least, justified.
(2) The decisions stated in item 1 and 2,
paragraph 1 to this Article may be processed by a computer.
3. Special
Investigation Procedure
Article 138
(1) A special investigation shall be
administered when certain facts and circumstances have to be determined that
are significant for clarification of the case or in order to give the parties a
chance to exercise and protect their
rights and legal interests.
(2) The course of the investigation
procedure shall be determined by the official that administers the procedure,
depending on the circumstances of each individual case, in accordance with the
provisions of this Law and the regulations
that refer to the specific case.
(3) Within these limits, the official that
administers the procedure shall: decide what activities shall be executed in
the procedure and give orders for their execution; determine the schedule for execution of certain actions and the
terms for their execution, unless the terms have been previously determined by
law; set up hearings and interrogations and make all arrangements needed;
decide which evidence and exhibits shall be used; and decide on all proposals
and statements.
(4) The official that administers the
procedure shall decide whether the hearing and evidence shall be made
separately on each individual disputable issue or jointly for the whole case.
Article 139
(1) The party shall have the right to
participate in the investigation and, for the purposes of the procedure, give
necessary data, as well as protect the rights and interests pertaining to
him/her according to the law.
(2) The party may present facts that might
have influence on the final outcome of the case and contest the allegations
that are not in accordance with his/her testimony. The party shall have the
right, up to the moment of the final adoption of the decision, to supplement
and elaborate his/hers allegations, and, if this is done after the hearing, the
party shall be obliged to justify the reasons for not doing so on the hearing.
(3) The official that administers the
procedure shall be obliged to give the possibility to the party to: elaborate
on all circumstances and facts that have been furnished during the
investigation and on the proposals and presented evidence; participate in
presentation of the evidence and ask the other parties, witnesses and legal
assessors through the official that administers the procedure, or, by consent
of the official, ask the questions directly, as well as learn about the results
of the presentation of the evidence, and give his/her opinion. The authorized unit shall not adopt a decision
prior to giving the party an opportunity to elaborate on the facts and
circumstances that are relevant for the decision if the party was not previously given the chance to give his/her
opinion on such facts and circumstances.
4. Previous
Issue
Article 140
(1) If the unit that administers the
procedure finds an issue that is essential for the adoption of the decision,
and such issue shall represent an independent legal issue that has to be
decided by an authorized court or unit
(previous issue), the unit may, pursuant to the provisions of this Law, decide
on that issue alone, or interrupt the procedure until such issue has been
decided by an authorized unit. A resolution shall be adopted for the
interruption of the procedure. An appeal may be lodged against such resolution,
unless the resolution was adopted by an appellate unit.
(2) If the unit adopted a decision on the
previous issue, such decision shall have legal effect only in the case for
which it was adopted.
(3) In case of criminal act and criminal
responsibility of the offender, the unit that administers the procedure shall
be obligated by the legally valid verdict of the criminal court by which the
defendant was found guilty.
Article 141
(1) The unit that administers the procedure
must interrupt the procedure if the previous issue refers to a criminal act,
existence of marriage, identification
of paternity or in cases established by
law.
(2) If the previous issue refers to a
criminal act, and there is no possibility for criminal prosecution, the unit
that administers the procedure shall decide on the issue.
Article 142
If
there is no need to interrupt the procedure due to previous issue, as stated in
Article 141 in this Law, the unit that administers the procedure may consider the
previous issue and adopt a decision as a part of the remaining case.
Article 143
(1) If the unit that administers the
procedure does not consider the previous issue as stated in Article 146 in this
Law, and the procedure for deciding on the previous issue, that can be
administered only officially, has still not been initiated by the authorized
body, the unit shall require institution of
a procedure by the authorized unit.
(2) In case the party requests adoption of a
decision regarding a previous issue, the unit that administers the procedure
may adopt a resolution and instruct one of the parties to request institution
of a procedure by the authorized body for deciding on the previous issue. The
unit shall determine a term in which the party shall be obliged to submit the
request and present an evidence for such request. The unit that administers the
procedure shall inform the party on the consequences if the party fails to act
pursuant to the instruction. The term
for instituting a procedure for a previous issue shall start to expire from the
day when the resolution becomes
effective.
(3) In case the party does not present an
evidence that he/she requested
institution of a procedure regarding a previous issue, it shall be
considered that the party abandoned the request for the procedure and the unit
that administers the administrative procedure shall cancel the procedure. If
the opposed party did not act pursuant to the instructions, the unit shall
continue the procedure and adopt a decision regarding the previous issue.
(4) An appeal may be lodged against the
resolution adopted pursuant to paragraph 2 of this Article.
Article 144
The
procedure that was interrupted because of a previous issue that had to be
decided by the authorized unit, shall be resumed after the decision becomes
final and valid.
5. Hearing
Article 145
The
official that administers the procedure shall set up, by his own initiative or
on proposal of the party, a hearing
whenever this would be useful for clarification of the case. A hearing
must be set up in cases when:
1) there are two or more parties in the
case having opposed interests; or
2) the witnesses or legal assessors should
be interrogated i.e. present their legal assessments.
Article 146
(1) The hearing shall be public.
(2) The official that administers the
procedure may close the hearing for the public, completely or partially, if:
1) there are ethical reasons or for
protection of the public security;
(2) there is a serious and direct danger
that the hearing shall be jeopardized;
(3) the relations in certain family matters
are to be heard;
(4) the circumstances that have to be heard
are considered to be official, business, professional,
scientific or artistic secret.
(3) The proposal for closing the hearing for
the public may be given by the interested party.
(4) A resolution shall be adopted for
closing the hearing for the public. Such resolution shall be elaborated and
given in public.
(5) The resolution shall obligatorily be
public.
Article 147
(1) The hearing shall not be closed for the
parties, their authorized persons and expert advisors.
(2) The official that administers the
procedure may allow presence of certain officials, experts and public figures
at a closed hearing if this is in the interest of their work. The official that
administers the procedure shall inform these persons that they are obliged to
consider the hearing as confidential.
Article 148
(1) The unit that administers the procedure
shall be obliged to make all necessary arrangements to set up the hearing on
time and, if possible, without interruptions.
(2) The persons that shall be summoned to
the hearing must be allowed a sufficient period of time in order to prepare for
the hearing and come on time without additional expenses. Generally, the
summoned persons shall have a period of 8 days from the submitting of the
summons to the hearing.
Article 149
If
certain designs, documents and objects are to be presented on the hearing, such
objects shall be put at disposal for the summoned persons. The time and place
when such objects can be examined shall be clearly stated on the summons.
Article 150
(1) The hearing shall be made public by the
unit that administers the procedure when: there is a possibility that certain
summons could not be submitted on time, there is a probability that there are
interested persons that could be parties or there are some other similar
reasons.
(2) The public notification of the hearing
shall include all data that have to be stated on the summons, as well as an
invitation for anyone who considers that the case refers to his/her legal
interests. Such notification shall be made in the way stipulated by Article 94
in this Law.
Article 151
Generally,
the hearing shall be held at the offices of the unit that administers the
procedure. In case of inquiry on the spot, the hearing may be held at the place
of the inquiry. The unit that administers the procedure may determine another
place for the hearing if this would decrease the expenses and contribute to
efficient and easy handling of the case.
Article 152
(1) At the opening of the hearing, the
official that administers the procedure shall determine who of the summoned
persons is present. In case there are absent persons, the official shall check
whether the summons were duly submitted.
(2) In case some of the parties that have
not been previously heard (interrogated) do not come to the hearing and it
cannot be determined whether the summons was delivered correctly, the official
who administers the procedure shall postpone the hearing. The hearing shall not
be postponed in cases when it was made public in time.
(3) If the party that requested institution
of the procedure does not come to the hearing, although he/she was duly
summoned, and the circumstances clearly
imply that the party abandoned the request, the unit that administers the
procedure shall cancel the procedure. An appeal may be lodged against the
resolution for cancellation. In case it cannot be assumed whether the party abandoned
the request, or whether the procedure has to be officially continued in the
public interest, the official, depending on the facts of the case, shall carry
out the hearing without that person or postpone the hearing.
(4) If the party against which the procedure
was instituted does not come to the hearing, although he/she was duly summoned,
the official who administers the procedure may carry out the hearing without
the party or may postpone the hearing, at the party’s expense, if this is
necessary for solving the case.
Article 153
(1) If the party, despite the information on
the consequences, does not give any comments during the hearing, it shall be
considered that the party has no comments. If the party gives comments after
the hearing, the unit that administers the procedure shall take such comment
into consideration if this would have an effect on the procedure and the
decision, and if such comment was not given after the hearing only to delay the
procedure.
(2) In case the party that was summoned by
public notification did not come to the hearing, and gives his/her comments
after the hearing, such comments shall be taken into consideration only on the
condition stated in paragraph 1 of this Article.
Article 154
(1) The facts relevant for the investigation
shall be considered and determined at the hearing.
(2) If the facts cannot be presented and
considered in one hearing, the official who administers the procedure shall
interrupt the hearing and schedule another one as soon as possible. The
continuation of the hearing shall be made in accordance with the provisions for
setting up of hearings and such provisions may be verbally announced to the
persons present at the hearing. The time and place of the continuation of the
hearing shall be also announced. When opening the continuation of the hearing,
the official shall give a summary on the previous course of the hearing.
(3) If written evidence should be presented
additionally, there shall be no need to schedule another hearing. However, the
party shall have the possibility to give comments on the evidence.
B.
Presentation of Evidence
1. General
Provisions
Article 155
(1) The facts relevant for making the
decision shall be established by presentation of evidence.
(2) Anything appropriate for determining the
circumstances shall be used as evidence. Such evidence may be: personal
identification documents, i.e. a microfilm copy of the document or photocopy of
the document, witnesses, testimony of the party, legal assessors, inquiries.
Article 156
(1) The official that administers the
procedure shall determine whether certain fact should be substantiated by
evidence or not, depending on the importance of such fact for the final
decision. Generally, evidence shall be presented in cases when the facts are
disputable and need to be proven.
(2) There shall be no need to prove facts
that are generally known.
(3) Also, there is no need to prove facts
that are presupposed by the law. However, it is not allowed to prove the
nonexistence of such facts, unless otherwise stipulated by law.
Article 157
In
case it is not possible to present evidence at the unit or if such presentation
implies loss of time or large expenses, certain facts may be proven by another
unit asked for assistance in such cases.
Article 158
If,
pursuant to the regulations, the case may be solved on the basis of facts or
circumstances that are not fully substantiated by evidence or the evidence only
party proves the facts (possible facts and circumstances), the presentation of
evidence shall not be connected to the stipulations of this Law.
Article 159
(1) In case the unit that administers the
procedure is not familiar with the rules and regulations valid in the foreign
country, the unit may get information with the unit authorized for legislature.
(2) The unit that administers the procedure
may ask the party to submit a document issued by the foreign agency that shall
confirm what law is valid in the foreign country. Unless otherwise stipulated
by international agreements, it shall be allowed to prove the foreign law that
is contrary to such document.
2. Documents
Article 160
(1) The document issued in the proper legal
form by the authorized government unit, which can be adapted for computer
processing, as well as the document issued in such form by an organization or
community that performs its activities on the basis of official authorizations
(official document), shall prove the facts that are certified or established by
the document.
(2) Evidences presented in the form of
microfilm copy or photocopy of the document shall be considered as equal to the
documents stated in paragraph 1 herein, if such microfilm copy or photocopy of
the document was issued by an authorized government unit, i.e. organization or
community that performs its activities on the basis of official authorizations.
(3) It shall be allowed to prove that the
document, i.e. the microfilm copy or photocopy of the document certifies facts
that are not true or that the document itself or the microfilm copy or
photocopy of the document has been incorrectly issued.
(4) It shall be allowed to prove that the
microfilm copy or photocopy of the document is not true to the original.
Article 161
If
certain parts of the document have been crossed out, erased or inserted, or if
there are some other obvious additional corrections on the document, the
official that administers the procedure shall assess whether and to what extent
such document presented as evidence is invalid, or the document is completely unacceptable to be presented as evidence.
Article 162
(1) The documents that are to be used as
evidence shall be submitted by the
parties or shall be acquired by the unit that administers the procedure. The
party may present the hard copy of the document, the microfilm copy or
photocopy of the document, the certified copy or plain copy of the document. If
the party presents a certified copy of the document, the official that
administers the procedure may ask the party to show the original document. If
the party presents a plain copy of the document, the official shall determine
whether the copy is true to the original. The microfilm copy or photocopy of
the document that has been duly issued by the authorized unit or by the
organization or community that performs its activities on the basis of official
authorizations, shall be valid as evidence in the administrative procedure and
shall be equal to the original document, as stated in Article 160, paragraph 1
of this Law.
(2) In case certain facts or circumstances
have been already established by the unit that was authorized to do so, or if
such facts and circumstances are clearly proven by the document (such as
personal identification card, and extract of the Registry Book), the unit that
administers the procedure shall consider the facts and circumstances as already
proven. If the issue refers to acquiring or loosing certain rights, and there
is a probability that such facts and circumstances have been changed, or have
to be proven on the basis of special rules, the official that administers the
procedure shall ask the party to furnish separate evidence for such facts and
circumstances or the unit may acquire them by itself.
Article 163
(1) The official that administers the
procedure may invite the party that cites a certain document as evidence to
present such document if he/she is in possession of such document or if he/she can acquire it.
(2) If such document is in possession of the
opposed party, and the party is not willing to present or show it, the official
person that administers the procedure shall invite that party to present or show the document at the
hearing so that the other parties may give comments.
(3) If the party invited to present or show
such document fails to act according to the instruction, the unit that
administers the procedure, considering all circumstances of the case, shall
evaluate the significance of such document for the final decision of the case.
Article 164
If
the document that has to be presented as evidence can be found with certain
government unit, organization or community that has official authorization to
decide on administrative issues, and the party that cited such document was not
able to provide it, the unit that administers the procedure shall officially
provide such document.
Article 165
(1) If the document is in possession of a
third party, and such party is not willing to show it voluntarily, the unit
that administers the procedure shall adopt a resolution and invite such person
to show the document, so that the parties may give their comments.
(2) The same reasons given when refusing to
testify may be stated when refusing to present the document.
(3) The same procedure shall be taken
against a person that unreasonably refuses to show the document as against a person that refuses to testify.
(4) The third party shall have the right to
appeal against the resolution that instructs him/her to show the document, as
well as against the resolution for penalty due to refusal to show the document.
Such appeal shall postpone the implementation of the resolution.
(5) The party that cites a document as
evidence that is in possession of third party shall be obliged to cover the
expenses of the third party regarding the presentation of the document.
Article 166
(1)
According to the Constitution of
the Republic of Macedonia, the laws, the statutes of the municipalities and the
city communities, the party shall have the right to present documents in the
language of the nation, i.e. the minority group he/she belongs to (Article 15).
(2) The documents that have been issued in
foreign language shall be submitted, if necessary, together with a certified
translation.
(3) The documents issued by foreign
agencies, which are valid as official documents in the country they were
issued, shall have, in accordance with the conditions of reciprocity, the same
probatory force as the local official documents, if they are legally certified.
2.
Certificates
Article 167
(1) The government units shall issue certificates
or other documents (certificates, attestations) to prove the facts that are
officially filed.
(2) Under the conditions stated in paragraph
1 above, the organizations and communities shall issue certificates or other
documents on the facts regarding the activities they perform pursuant to their
official authorization.
(3) The certificates or other documents that
prove the facts which are officially filed, shall be issued in accordance with
the data stated in the official files. Such certificates or other documents shall have the validity of
an official document.
(4) Official files shall mean the files that
have been established by rules, i.e. by general rules and regulations of the
organization or the community that has official authorizations.
(5) The certificates or other documents on
the facts that are officially filed, shall be issued on verbal request of the
party, usually, on the same day when the party requested such certificate or
other document, and latest by 15 days, unless the rule referring to the
official files stipulates otherwise.
(6) If the units stated in paragraph 1 and 2
of this Article, refuse the request for issuance of a certificate or other
document, they shall be obliged to adopt a separate resolution on that. If the
units do not issue a certificate or other document within 15 days from the day
of the request, or they do not adopt a
resolution and submit it to the party,
it shall be considered that the request has been rejected.
(7) If the party, on the basis of evidence,
considers that the certificate or other document has not been issued in
accordance with the data listed in the official files, the party may request
correction of the certificate or other document. The unit shall be obliged to
adopt a resolution in case it refuses the request of the party to correct the
certificate or issue a new certificate or other document. In this case, also,
the new certificate or other document shall be issued within 15 days from the
day of the request. If the new certificate or other document was not issued
within this term it shall be considered that the request was refused.
Article 168
(1) The government units, i.e. the
organizations and communities shall issue the certificates or other documents
regarding facts that are not filed officially if this possibility is stipulated
by law. In such cases the facts shall be determined in accordance with the
procedure established by the provisions of this Chapter.
(2) The certificate or other document issued
in the way stipulated in paragraph 1 of this Article, does not obligate the
unit to which the certificate was presented as evidence to take the facts as
granted. This unit may redefine the facts stated in the certificate or other
document.
(3) The certificate or other document shall
be issued to the party, i.e. the resolution regarding the refusal of the
party’s request shall be adopted and submitted within 30 days from the day of
the request. Otherwise, the request of the party shall be considered as
refused.
3.
Witnesses
Article 169
(1) A witness may be any person who was
capable of noticing the fact and give a testimony regarding that fact.
(2) The person that participates in the
procedure in the capacity of an official cannot be a witness.
Article 170
Any
person asked to act as a witness shall be obliged to respond to the summons and
testify, unless otherwise stipulated by this Law.
Article 171
Any
person that by his/her testimony would violate the duty to keep an official,
state or military secret cannot be interrogated as witness until the moment
such person is freed from the duty by the authorized unit.
Article 172
(1) The witness may refuse to testify if:
1) by giving certain answers the witness would disgrace himself
or cause significant material loss or
criminal action against him/her, his/her close relative (blood relative) or
third cousin, his/her spouse or the spouse’s relative up to second cousin, even
in cases when the marriage was divorced, as well as to his/her guardian or
foster child or adoptive parent or child;
2) by giving certain answers he/she would violate the
obligation i.e. the right to keep a business, professional, scientific or
artistic secret;
3) he/she has to testify on facts that the party confided to
him/her as an authorized person;
4) the witness is a religious confessor to whom the party
confessed certain facts.
(2) The witness may be relieved of the duty
to give a testimony on certain other facts if he/she provides acceptable
reasons. If necessary, the witness shall have to furnish evidence to prove such
reasons.
(3) The witness may not refuse to testify,
stating material loss as reason, on legal proceedings in which he/she
participated as witness, notary or intermediary, on actions that he/she has
undertaken regarding the dispute in the capacity of a legal predecessor or
representative of one of the parties, as well as on any action for which he/she is obliged to submit a report or to
give a statement, in accordance with separate rules.
Article 173
(1) The witnesses shall be heard separately,
without the presence of those witnesses that shall be heard later.
(2) The witness may not leave the room
without the permission of the official that administers the procedure.
(3) The official that administers the
procedure may hear the witness that has been already heard, and confront the
witnesses whose testimonies are contradictory.
(4) The witness who cannot respond to the
summons, due to illness or physical disability, shall be heard in his/her
apartment.
Article 174
(1) The witness, prior to his/her testimony,
shall be informed that he/she is obliged to say the truth, that he/she may not
suppress anything and that his/hers testimony may be given under oath. The
witness shall also be informed of the
consequences for giving a false statement.
(2) The personal data of the witness shall
be taken as follows: name, profession, address, place of birth, age and marital
status. If necessary, the witness shall be asked to explain his/her capacity as
a witness in the case and especially his/her relations with the parties.
(3) The official that administers the
procedure shall inform the witness in which cases he/she may refuse to testify.
(4) Then the witness shall be asked
questions regarding the case.
(5) It is not allowed to ask questions
suggesting the answer.
(6) The witness shall always be asked about
the source of the information he gives in the testimony.
Article 175
(1) In case the witness cannot speak the
language in which the procedure is being administered, he/she shall be heard
through a interpreter.
(2) If the witness is deaf, the questions
shall be written, and in case he/she is dumb he/she shall give written answers.
If the hearing cannot be performed in this way, the witness shall be heard
through a person that can understand the witness.
Article 176
(1) After hearing the witness, the official
that administers the procedure shall decide whether the witness should give a
testimony under oath. A witness that is under age or cannot understand the
meaning of an oath shall not be asked to give testimony under oath.
(2) The oath shall be verbal as follows: “I
hereby give an oath that I have spoken the truth and, as far as I know, I have
not suppressed anything regarding the case”.
(3) The literate deaf witnesses shall give an oath by signing the text of
the oath, and the dumb witnesses shall read the text of the oath. If the dumb
or deaf witnesses are illiterate they shall give an oath through an person that
understands them.
NOTE: (referring to paragraph 2)
The
text of the oath should be checked in the Law on Civil Procedure and the Law on
Criminal Procedure in order to bring them into concord.
Article 177
(1) If the witness who was duly
summoned does not come and gives no
justifiable reason for his absence, or leaves the place of the hearing without
any permission or justifiable reason, the unit that administers the procedure
may instruct that such witness be
summoned by force. In this case the witness shall cover the expenses for
his/her summoning and may be punished with a fine up to 5.000 denars.
(2) In case the witness refuses to testify
and gives no justifiable reason, despite the information on the consequences
for such refusal, the witness may be punished with a fine up to 5.000 denars.
If the witness still refuses to testify he/she may be punished with another
fine up to 5.000. The resolution for such fine shall be adopted by the official
that administers the procedure in accordance with the official authorized to
adopt the decision regarding the case, and in case of a unit asked to
assist - in accordance with the
commander of that unit i.e. with the official person authorized to decide in
such cases.
(3) If the witness gives acceptable
reasons for his absence later, the
official that administers the procedure shall cancel the resolution regarding
the fine and the compensation of the expenses. If the witness agrees to testify
later, the official may cancel the resolution regarding the fine.
(4) The official that administers the
procedure may adopt a decision by which he/she shall instruct the witness to
cover the expenses caused by his/her absence or refusal to testify.
(5) An appeal may be lodged against the
resolution regarding the covering the expenses and the fine.
4.
Statements of the Party
Article 178
(1) In case there is no direct evidence to
confirm certain facts or such facts cannot be determined on the basis of any
other kind of evidence, the party may give a verbal statement that may be
considered as evidence to prove certain facts. The party’s statement may be
used as evidence in some facts of minor importance, if such facts should be
determined by hearing of a witness that lives in distant place, or if the
rights of the party would be impeded if
some other evidence had to be provided.
(2) It may be stipulated by law that in
other cases, beside those stated in paragraph 1 of this Article, certain facts
can be proven by a statement given by the party.
(3) The truthfulness of the party's
statement shall be assessed according to the principle stipulated by Article 9
in this Law.
(4) Prior to making the statement, the
official that administers the procedure shall inform the party of the criminal
and material responsibilities in case of false statement.
5. Legal
Assessors
Article 179
If
the official that administers the procedure has no expert knowledge on a fact
that is important for the decision, such fact shall be determined or assessed
by legal expert assessment.
Article 180
(1) If the costs of the legal assessment would be proportionally higher compared to the
importance or the worthiness of the case, the issue shall be settled on the
basis of other evidence.
(2) In the case stated in paragraph 1 above,
the legal expert assessment shall be performed if the party requests such
assessment and agrees to cover the expenses.
Article 181
(1) In order to provide evidence by legal
assessment, the official that administers the procedure shall, officially or by
proposal of the party, designate a legal expert assessor; however, if the
official determines that the assessment is complex, then he/she may designate
two or more legal expert assessors.
(2) The designated legal assessors shall be
experts, especially those that have been specially authorized to give expert
opinion regarding certain issues of the adequate profession.
(3) Usually, the party shall be asked to
give its opinion on the person that shall be designated as legal assessor.
(4) A person that cannot act as a witness
shall not be designated as legal expert assessor.
Article 182
(1) Any person that has the necessary expert
knowledge and education shall be obliged to act as a legal assessor, unless the
official that administers the procedure relieves the expert due to justifiable
reasons, such as unavailability due to too many assignments as legal assessor,
other assignments and other reasons.
(2) The manager of the agency or the
organization where the legal assessor is employed may request his/her relief of
the duty to give legal expert assessment.
Article 183
(1)
The legal assessor may refuse to
give legal expert assessment for the same reasons as the witness may refuse to
testify.
(2) The legal assessor that is employed at a
government unit may, on the basis of special regulations, be relieved of the duty
to give legal assessment.
Article 184
(1)
Regarding the exemption of the
legal assessors, the provisions on exemption of the official persons shall be
valid.
(2) The party may request exemption of the
legal assessor if he/she proves the circumstances that question the expert
knowledge of the legal assessor.
(3) The official that administers the
procedure shall adopt a resolution on the exemption of the legal assessor.
Article 185
(1) Prior to giving the legal assessment,
the legal assessor shall be informed that he/she is obliged to carefully
consider the subject of the assessment and in the report he/she should give the
exact findings, as well as give his/her expert opinion impartially in
accordance with the scientific and expert knowledge.
(2) The official that administers the
procedure shall present to the legal
assessor the exhibits on which he/she should give an opinion.
(3) The legal assessor shall then elaborate
his/her findings and expert opinion. The official that administers the procedure
and the parties shall have the right to ask questions and require explanation
on the findings and expert opinion of the legal assessor.
(4) Regarding the testimonies of the legal
assessor, the provisions of Article 174 in this Law shall be valid.
(5) The legal assessor shall not take an
oath.
Article 186
(1) The legal assessor may be instructed to
give an expert assessment prior to the hearing. In such case the legal assessor
may be required to elaborate his/her written report and expert opinion.
(2) If more than one legal assessors are
designated, they may give a joint report and opinion. In case there is an
disagreement, each of them shall separately elaborate his/her findings and
expert opinion.
Article 187
(1) If the report and the opinion of the
legal assessor are not clear or complete, or if they differ significantly, or
the opinion has not been entirely elaborated, or there is a justifiable
distrust in the correctness of the given opinion, and if such shortcomings
cannot be eliminated even by a renewed hearing of the assessors, the assessment
shall be renewed with the same or other legal assessors, or an opinion may be
asked by some other scientific or expert institution.
(2) An opinion by a scientific or expert
organization may also be asked in instances when the case is very complex or
there is a need for an analysis in order to get an expert and precise report
and opinion.
Article 188
(1) If the legal assessor who was duly
invited does not come, and gives no justifiable reasons for his/her absence, or
if he/she comes but refuses to give assessment, or does not submit his/her
written report and opinion within the term determined, the legal assessor may
be punished with a fine of 5.000
denars. If additional expenses of the procedure occurred because of the
unreasonable absence of the legal assessor, or his/her refusal to give expert
assessment or because of his failure to present the written report and opinion
in time, the legal assessor may be instructed to pay such expenses.
(2) The resolution for payment of the
expenses of a fine shall be adopted by the official person that administers the
procedure in accordance with the official authorized to adopt a decision on the
case, and if there is an unit asked to help - in accordance with the commander
of that unit or the official authorized to decide in such cases.
(3) In case the legal assessor gives
justifiable reasons for his absence later, or if he/she gives acceptable
reasons for not submitting the written report and opinion in time, the official
that administers the procedure shall cancel the resolution for the fine or the
payment of expenses, and if the legal assessor agrees to give his/her expert
opinion later, the official may cancel the resolution for payment of the fine.
(4) An appeal may be lodged against the
resolution for payment of a fine or of the expenses adopted pursuant to
paragraph 1 or 2 of this Article.
6.
Interpreters
Article 189
The
provisions stipulated in this Law regarding the legal assessors shall apply to
the interpreters.
7. Inquiry
on the Spot
Article 190
An
inquiry on the spot shall be made when there is a need to determine certain
fact or to clarify essential circumstances by direct observance of the official
that administers the procedure.
Article 191
(1) The parties shall have the right to
attend at the inquiry at the place. The official that administers the procedure
shall determine what other persons beside the parties shall attend the inquiry.
(2) The inquiry on spot may be performed by
participation of legal assessors.
Article 192
The
inquiry on the spot of the object that can be brought at the place where the
procedure is being administered shall be done at that place. Otherwise, the
inquiry shall be made at the place where the object is located.
Article 193
(1) The owner or holder of the objects, the
premises or the land that has to be observed, or where the objects are located,
or the land where it should be passed, such owner or holder shall be obliged to
allow performance of the inquiry.
(2) If the owner or holder does not allow
the inquiry on spot to be made, the provisions regarding the refusal to testify
shall apply.
(3) The same measures stipulated against a
witness that refuses to testify (Article 177, paragraphs 2, 3 and 4) shall
apply for the owner or holder that without any justifiable reason does not
allow the inquiry on the spot to be made.
(4) If any damage occurs during the inquiry
on the spot, such expenses shall be included in the overall expenses of the
procedure (Article 109, paragraph 1) and the damage shall be compensated to the
owner or holder. The resolution regarding compensation of the damage shall be
adopted by the unit that administers the procedure. An appeal may be lodged
against such resolution.
Article 194
The
official that administers the inquiry on the spot shall take care that the
inquiry shall not be misused and that no business, professional, scientific or
artistic secret shall be disclosed.
8. Provision
of Evidence
Article 195
(1) If there is any reasonable doubt that
some evidence cannot be presented or that its presentation shall be difficult,
such evidence may be presented at any stage of the procedure, even prior to the
institution of the procedure, in order to assure that the evidence shall be
presented.
(2) The presentation of the evidence shall
be performed officially or on the proposal of the party, i.e. the person that
has a legal interest in the procedure.
Article 196
(1) The unit that administers the procedure
shall be responsible for furnishing of the evidence during the course of the
procedure.
(2) In case the evidence has to be furnished
prior to the institution of the procedure, the unit that is within the region
where the relevant objects are located, or the region where the persons that
have to be heard reside, shall be authorized to furnish the evidence.
Article 197
(1) A separate resolution shall be adopted
on furnishing of the evidence.
(2) An appeal may be lodged against the
resolution by which the proposal for furnishing the evidence has been rejected.
This appeal shall not interrupt the course of the procedure.
CHAPTER XII
DECISION
1. An Unit
that Adopts a Decision
Article 198
(1) On the basis of the facts established in
the procedure, the authorized unit shall adopt a decision.
(2) If the decision is adopted by a managing
board, such decision shall be adopted by the majority votes of its members,
unless otherwise stipulated by law or other regulations especially regarding
the majority. Special regulations shall be valid for decisions adopted by
executive committees (executive boards).
Article 199
If
there are cases stipulated by law or other regulations based on law, when
certain issue may be decided by two or more units, each of these units shall be
obliged to adopt a decision.
The
units shall have to agree which of them shall issue the decision. The text of
the decision shall state the decisions of the other units.
Article 200
(1) In cases when it is stipulated by law or
other regulations based on law that the decision should be adopted by one unit
with prior consent of another unit, the decision shall be adopted only after
the consent of the other unit has been given. The unit that adopts the decision
shall be obliged to state the document by which the other unit gave or refused
its consent, i.e. the unit shall state that such consent was not given nor
refused by the other unit within the stipulated term.
(2) In cases when it is stipulated by law or
other regulations based on law that the decision shall be adopted by one unit
by consent of another unit, the unit that adopts the decision shall make the
text of the decision and together with the document of the case the unit shall
send it to the other unit that shall give its consent by a confirmation on the
decision itself or by issuance of a separate document. In such case the
decision shall be considered as adopted only after the other unit gives its
consent, and the decision shall represent a document issued by the unit that
adopted it.
(3) The provisions of the previous paragraph
shall apply in cases when it is stipulated by law that the decision shall be
adopted by one unit upon a confirmation or approval of another unit.
(4) In cases when it is stipulated by law or
other regulations that the authorized unit is obliged to acquire an opinion by
another unit prior to adopting the decision, such decision can be adopted only
after the opinion has been provided.
(5) The unit that has to give its opinion
needed for adoption of the decision, shall be obliged to reply within one month
from the day the opinion or consent was asked, unless other terms have been
stipulated by special rules. If the
unit authorized to adopt the decision
does not receive any information about the consent or refusal of the other
unit, it shall be considered that the consent was given, and if no opinion is
given, the authorized unit may adopt a decision even without such opinion,
unless otherwise stipulated by other
rules.
Article 201
In
case the official that administered the procedure is not authorized to adopt a
decision, the official shall submit a draft decision to the unit authorized to
adopt a decision. The official shall sign the draft of the decision.
2. Contents
and Supplements of the Decision
Article 202
(1) Any decision shall be titled as such. In
exceptional cases, it may be stipulated by special rules that the decision may
have another title.
(2) The decision shall be written. In
exceptional cases, stipulated by this Law or by special rules passed on the
basis of this Law, the decision may be verbal.
(3) The written decision shall comprise:
introduction, enacting clause, statement of reasons (comments), instructions on
the legal remedies, the name of the unit and the number and date of the decision,
signature of the official and the unit’s stamp. In cases stipulated by law or
by regulations passed on the basis of this Law, the decision may not contain
some of these parts. If the decision is written on a typing machine, a
facsimile may be used instead of a signature and a stamp.
(4) Even if there is a verbal decision, such
decision must be issued in a written form also, unless otherwise stipulated by
law or by a regulation passed on the basis of a law.
(5) The original or a certified copy of the
decision must be submitted to the party.
Article 203
(1) The introduction of the decision shall
comprise: the name of the unit that adopted the decision, the regulation regarding the authority of
that unit, name of the party and his/her legal representative or authorized
person, if any, and summary of the issue of the procedure.
(2) If the decision was adopted by two or
more units, or by consent, confirmation or opinion of another unit, this shall
be stated in the introduction. If the decision was adopted by a managing board,
the date of the session on which the decision was adopted shall be stated in
the introduction.
Article 204
(1) The enacting clause shall include the
decisions regarding the case as a whole and decisions regarding all requests
submitted by the parties that have not been decided on separately during the
procedure.
(2) The enacting clause must be brief and
precise. If necessary, it may be divided in several items.
(3) The enacting clause may include the
decision regarding the expenses of the procedure, if any, determine their
amount, who will pay them, to whom and in what term. If the enacting clause
does not include a decision regarding the expenses, it shall be stated that a
separate resolution shall be adopted regarding the expenses.
(4) If the decision includes instructions
for performance of certain actions, the enacting clause shall state the term
for performance of such actions.
(5) If it is stipulated that the appeal
shall not postpone the implementation of the decision, such stipulation shall
be stated in the enacting clause.
Article 205
(1) Regarding simple cases in which only one
party participates, or in simple cases with two or more parties participating,
but none of the parties appeals to the
request, and the request has been approved, then the statement of reasons
(comment) of the decision shall be only a brief explanation of the party's request and a reference to the legal
regulations that were applied for deciding on the case. In such cases the
decision may be issued on a regular form.
(2) In other cases the comments shall
include: brief explanation of the parties' request, the facts of the case, and,
if needed, the circumstances that were essential for the assessment of the
evidence, the reasons for not accepting some of the requests of the parties,
the legal regulations and the principles that, considering the facts of the
case, lead to the decision stated in the enacting clause. If the appeal does
not affect the implementation of the decision, the comments shall include the
rule that stipulates such possibility. The comments of the decision must state
the resolutions against which no appeal can be lodged.
(3) In cases when, pursuant to the law or
other rule based on law, the authorized unit shall have the authority to decide
on the case at its own discretion, such unit shall be obliged to state in the
statement of reasons the provisions of the rule and the principles that were
essential for adopting the decision, as well as the data stated in paragraph 2
above. Such principles may not be stated in cases when for protection of the
public interest it is explicitly stipulated by law.
(4) If it is explicitly stipulated that the decision adopted at the
units own discretion may not state the principles essential for the adoption of
the decision, the statement of reasons shall include the data stated in
paragraph 2 above, the regulation by which the unit is authorized to decide on
the case at its own discretion and the regulation by which the unit is authorized
not to state the principles that were essential for the adoption of the
decision.
Article 206
(1) The instructions on the legal remedies
the party shall be advised whether he/she shall have the right to lodge an
appeal or to institute an administrative dispute or other court proceedings
against the decision.
(2) If an appeal may be lodged against the
decision, the instructions shall state to what unit such appeal may be lodged,
in what term and the amount of the tax that has to be paid when presenting the
appeal. The instructions may also state that the appeal may be given verbally
and entered into the records.
(3) If an administrative dispute may be
instituted against the decision, the instructions shall state to which court
the plea should be presented and in what term, and in case of other court
proceedings the instructions shall state what court should be addressed and in
what term.
(4) If the instructions given in the
decision are incorrect, the party may act according to the valid regulations or
according to the instructions. There shall be no prejudice for the party if it
acts according to the incorrect instructions.
(5) If no instructions or incomplete
instructions are given in the decision, the party may act according to the
valid regulations or may require of the unit that adopted the decision to amend
the decision. In such case the term for the appeal or court plea shall start to
expire from the day of the amended decision.
(6) If an appeal may be lodged against the
decision and the party has been wrongly instructed that an appeal is not
permitted, or that an administrative dispute may be instituted, the term for
the appeal shall start to expire from the day of the court’s decision by which
the plea has been rejected as illicit, unless the party previously lodged an
appeal to the authorized unit.
(7) If no appeal may be lodged against the
decision, and the party has been wrongly instructed that an appeal may be
lodged against the decision, and the party has lodged an appeal and therefore failed
to observe the term for institution of an administrative dispute, such term
shall start to expire from the day of the decision for rejection of the party’s
appeal, unless the party previously instituted an administrative dispute.
(8) The instructions on the legal remedies,
as a separate integral part of the decision (Article 202, paragraph 3) shall be
stated after the statement of reasons.
Article 207
(1) The decision shall be signed by the
official that adopts it.
(2) The decision adopted by a managing board
shall be signed by the president of the managing board, unless otherwise
stipulated by this Law or by special rule.
(3) If the managing board adopted a complete
decision, the parties shall receive a certified copy of the decision, and if the
case was solved by adoption of a resolution, the decision shall be issued in
accordance with such resolution and the parties shall receive a certified copy
of such decision.
Article 208
(1) If the case refers to a number of
individuals, one decision shall be adopted for all individuals. However, the
names of each person shall be stated in the enacting clauses and the statement
of reasons shall include the reasons that refer to each of the persons. Such
decision shall be submitted to each individual, except in cases stipulated in
Article 90 of this Law.
(2) If the case refers to a number of
individuals that are not known for the unit, one decision shall be adopted for
all individuals. However, such decision must include some data which shall
clearly imply to what persons the decision refers (for example, citizens or
owners of property in particular street).
Article 209
(1) In less important cases in which the
request of the party has been approved, and the public interest or the interest
of other persons has not been jeopardized, the decision shall include only
the enacting clause stated as a note,
if the reasons for such decision are obvious, unless otherwise stipulated.
(2) Generally, such decision shall be
conveyed verbally to the party, and if the party requires, it shall be issued
in a written form.
(3) Generally, such decision shall not include a statement of
reasons, except if the nature of the case implies that it is necessary to
include a statement of reasons. Such decision may be issued on a special form.
Article 210
(1) In case of very urgent measures that
have to be taken for protection of the public order and security or for
elimination of situations that endanger the lives and health of the people or
the possessions, the authorized unit, i.e. the authorized official in the unit
(Article 32) may adopt a verbal decision.
(2) The unit that adopted a decision in
accordance with paragraph 1 above may instruct immediate implementation of the
decision.
(3) The unit that adopted a verbal decision,
at the party’s request, shall be obliged to submit a written decision within
eight days form the day of the request. Such request may be submitted within
two months form the day of the verbal decision.
3. Partial,
Supplementary or Interim Decision
Article 211
(1) If the case includes several items and
only some of them have been considered and are ready to be decided on, if
reasonable, the authorized unit may adopt a separate decision regarding only
these items.
(2) The partial decision regarding to the
legal remedies and the implementation shall be considered as independent
decision.
Article 212
(1) If the authorized unit has not decided
on all issues subject of the case, the unit may, on proposal of the party or
officially, adopt a separate decision on the issues that have not been
previously decided on (supplementary decision). In case the proposal of the
party for adoption of a supplementary decision has been rejected, an appeal may
be lodged against such resolution.
(2) If the case has been considered to
certain point, the supplementary decision may be adopted without renewed
investigation.
(3) The supplementary decision regarding the
legal remedies and the implementation shall be considered as independent
decision.
Article 213
(1) If the circumstances of the case imply
that it would be necessary to adopt a decision that would temporarily settle
some disputable issues or relations prior to the completion of the procedure,
such decision shall be adopted on the basis of the facts that exist at the
moment of its adoption. Such decision must explicitly state that it is an
interim decision.
(2) The adoption of the interim decision on
the proposal of a party may be conditioned by an amount that shall be deposited by the party for
covering of the expenses that might be imposed to the opposed party due to the
implementation of such decision, especially if the original request of the
proposer was not accepted.
(3) The main decision adopted generally
after completion of the procedure, shall cancel the interim decision adopted
during the course of the procedure.
(4) The interim decision regarding the legal
remedies and the implementation shall be considered as independent decision.
4. Term for
Issuing a Decision
Article 214
(1) In cases when the procedure has been
instituted on request of the party or officially in the interest of the party
and there is not need for an investigation nor there are other reasons that
prevent the adoption of a decision
(deciding on previous issue or other), the authorized unit shall be
obliged to adopt a decision and submit it to the party as soon as possible, or
within one month, at the latest, counting from the day the request has been
submitted, i.e. from the day of the institution of the official procedure,
unless other shorter term has been stipulated by a special rule. In other cases
when the procedure has been instituted on request of the party or officially in
the interest of the party, the authorized unit shall adopt a decision and
submit it to the party within two months, at the latest, unless other shorter
term has been stipulated by a special rule.
(2) If the authorized unit does not adopt a
decision, against which an appeal may be lodged, and does not submit it within
the stipulated term, the party shall have the right to lodge an appeal, as if
his/her request was rejected.
(3) If the authorized unit has no
possibility to adopt the decision within the stipulated term (one or two
months), it shall be obliged to inform the party and state the reasons for not
adopting the decision within the stipulated term.
(4) The authorized unit shall be obliged to determine a new term for
adoption of the decision, or to instruct the party to take legal action against
the inefficiency of the administration.
5.
Correction of Errors in the Decision
Article 215
(1) The unit that adopted the decision i.e.
the official that signed it or issues it may, at any time, correct the errors
made in the names or numbers, spelling or calculations, as well as other obvious
errors in the decision or its certified copies. The correction of an error
shall generate a legal action from the day stated in the corrected decision.
(2) A separate resolution shall be adopted
regarding the correction. The note referring to the correction shall be entered
in the original of the decision and, if possible, in all certifies copies
submitted to the parties. The note shall be signed by the official person that
signed the resolution for the correction.
(3) An appeal may be lodged against the
resolution for correction of the decision or against the proposal for
correction of the decision.
CHAPTER XIII
RESOLUTION
Article 216
(1) Resolutions shall be adopted regarding
certain issues of the procedure.
(2) The issues that incidentally occur
during the administration of the procedure, and there is no need to adopt a
separate decision, shall be settled by a resolution.
Article 217
(1) The resolution shall be adopted by the
official that administers that part of the procedure where the issue should be
settled by a resolution, unless otherwise stipulated by other regulations.
(2) If the resolution instructs execution of
certain action, the term for the execution of such action shall be stated in
the resolution.
(3) The interested parties shall be verbally
informed about the resolution, and a written resolution may be issued at the
request of the person that may lodge an appeal against such resolution, or in
cases when an immediate implementation of the resolution is required.
Article
218
(1)
A special appeal can be lodged against a resolution only when strictly
stipulated by law. Such a resolution must be elaborated, comprising
instructions for an appeal.
(2)
The appeal shall be lodged within the same time period, in the same way and to
the same unit as the appeal against the decision.
(3)
The resolutions against which an appeal is not allowed can be refuted by
lodging an appeal against the decision by the interested persons, unless an
appeal against a resolution is not allowed according to this law.
(4)
The appeal does not postpone the implementation of the resolution, unless
otherwise stipulated by law or by the resolution.
PART III
LEGAL REMEDIES
CHAPTER XIV
APPEAL
1. Right to appeal
Article 219
(1)
The party has a right to lodge an appeal against a decision brought at the
first instance.
(2)
The party can lodge a complaint and initiate an administrative dispute against
a decision brought at the first instance.
On
the basis of the attitude of the party, it can initiate an administrative
procedure at the second instance by lodging an appeal or immediately initiate
an administrative court procedure by a complaint for administrative dispute.
(3)
The Public Prosecutor, Public Attorney and other government units, when legally
authorized, can lodge an appeal against a resolution that violates the law in
favor of individuals or legal entities, and to a disadvantage to the public
interest.
Article 220
(1)
An appeal can be lodged against a decision at the first instance of a
government regional unit to an Appellate Government Committee; unless the
authority of the ministry or of an appropriate government unit, where the
regional unit belongs to and the decision has been lodged against, is otherwise
stipulated by law .
(2)
An appeal can be lodged against the first instance decision of a ministry or of
another independent government unit, to the appropriate Appellate Government
Committee that brings decision at the second instance.
(3)
An appeal can be lodged against the first instance decision of a government
unit being a part of a higher government unit, to an administrative unit to
which the first instance unit belongs.
(4)
An appeal cannot be lodged against a decision of the Government of the Republic
of Macedonia, nor against a decision of its boards and committees.
2. Authorized units for bringing a decision upon an
appeal
Article 221
If,
referring to Article 18 from the Law on administrative procedure, a certain
government unit of the municipalities, or, a regional government unit, is
delegated to bring a first instance decision, the units regarding paragraph 1
Article 224 of this law shall bring decision upon lodged appeals against their
decisions.
Article 222
An
appeal cannot be lodged against a decision of the Assembly of the Republic of
Macedonia, or, of the board of local self-government units at the first
instance.
Article 223
(1)
The unit authorized for settling the appeal against a decision of the unit that
adopted (Article 199) or brought the disputed decision (Article 200), shall
decide upon the appeal against the decision based upon Article 199 and 200,
unless otherwise stipulated by a special regulation the decision to be brought
by another unit. The unit at the second instance can only revoke the disputed
decision, but it cannot change it.
(2)
If the unit, according to paragraph 1 of this Article, authorized to bring a
decision upon the appeal has agreed, approved or confirmed the first instance
decision, the legally authorized unit
shall bring a decision upon the appeal, and, if such unit has not been
determined, a direct administrative dispute can be initiated against such
decision.
Article 224
(1)
The unit determined in the regulations of the organization or of the community,
shall bring a decision upon the appeal lodged against the first instance
decision of the organization or the community, unless another unit is legally
determined to bring a decision upon the appeal.
(2)
The administrative unit shall bring a decision upon an appeal lodged against
the first instance decision of an organization or community brought during the
realization of the public authorization, if stipulated by law.
(3)
If a unit has not been determined to bring a decision upon the appeal regarding
the provisions from paragraph 1 and 2 of this Article, the administrative unit
authorized for particular administrative area shall bring a decision upon the
appeal.
3. Terms of appeal
Article 225
(1)
An appeal shall be lodged within 15 days, unless otherwise stipulated by law.
(2)
The time period for each individual and each unit the decision is submitted to,
shall be from the day of the submission.
Article 226
(1)
Within the time period determined for the appeal, the decision cannot be
implemented. When the appeal is properly lodged, the decision cannot be
implemented until previously submitted to the party.
(2)
The decision, as an exception, can be implemented within the term determined
for an appeal as well as after the appeal is lodged, if stipulated by law. It
can be also implemented in case of undertaking urgent measures (item 4 Article
137), or, if due to a delay of the implementation by some of the parties, some
harm has been done which cannot be corrected. In the last case, an appropriate
safeguarding from the party can be requested, in the interest of which an
implementation is executed, conditioning the implementation accordingly.
4. Contents of an appeal
Article 227
(1)
The appeal must include the decision being refuted, expressing the name of the
unit that brought it. The explanation of the dissatisfaction related to the
decision in the appeal, shall be sufficient, whereas an explanation of the
appeal is not necessary.
(2)
New facts and new evidence can be included in the appeal, although the
appellant shall not be obligated to give an explanation why they were not
included at the first instance procedure.
(3)
If the appeal comprises new facts and new evidence, and, two or more parties of
opposite interest participate in the procedure, the copies of the appeal shall
be in number adequate to the number of such parties. In such cases, the unit
shall submit to each party a copy of the appeal, determining a term for
presentation of new facts and evidence. This time period cannot be less than eight,
nor longer than fifteen days.
5. Submission
of the appeal
Article 228
(1)
The appeal shall be directly submitted or sent by mail to the unit that brought
the decision at the first instance.
(2)
If the appeal has been submitted or directly sent to the unit at the second
instance, it shall immediately deliver the appeal to the unit at the first
instance.
(3)
The appeal that has been submitted or directly sent to the unit at the second
instance, shall be also considered delivered to the unit at the first instance.
6. Activities of the first instance unit upon an
appeal
Article 229
(1)
The unit at the first instance shall investigate whether the appeal is allowed,
on time and presented by an adequate person.
(2)
The illegitimate, late or an appeal by an unauthorized person, shall be refuted
by the first instance unit by bringing its decision against.
(3) The first instance unit
shall consider the timing of the appeal submitted or delivered directly to the
second instance unit from the day it was submitted or delivered to the second
instance unit.
(4)
The party has a right to lodge an appeal against a decision refuting the appeal
based upon paragraph 2 of this Article. If the unit bringing a decision upon
the appeal considers the appeal justified, at the same time, it shall decide
upon the appeal that has been refuted.
Article 230
(1)
If the unit, that has brought the decision, considers the appeal justified, and
new action is not needed to be brought against, the issue can be solved by
replacing the decision, being refuted with the appeal, with a new one.
(2)
The party shall have the right to lodge an appeal against the new decision.
Article 231
(1)
If the unit, that brought the decision, finds out that the implemented
procedure upon the appeal is not complete, and, that it could have influenced
on the settlement of the matter, the unit can complete the procedure according
to the provisions of this law.
(2)
The unit, that brought the decision, shall complete the procedure and the
appellant shall present in the appeal facts and evidence that can result in a
different decision, if the appellant has had to be given an opportunity to
participate in the procedure that preceded the decision, but the opportunity
has not been given; or, the opportunity has been given, but the appellant has
not used it, although in the appeal the failure is justified.
(3)
Regarding the result of the amended procedure, the unit that brought the
decision can bring a different decision to the extent of the request, and, by
new the decision replace the decision refuted by the appeal.
(4)
The party shall have the right to lodge an appeal against the new decision.
Article 232
When
the decision has been brought without previous special obligatory
investigation, or, brought in accordance with item 1, 2 and 3 Article 141 from
this law, but the party has not been given an opportunity to come out for facts
and circumstances of importance for bringing the decision; whereas the party
requests in the appeal the investigation to be implemented, an opportunity to
be given to come for the facts and circumstances, - the first instance unit
shall be obligated to implement the procedure. After implementing the
procedure, the first instance unit can accept the request from the appeal and
bring new decision.
Article 233
(1)
When the unit that brought the decision considers the appeal acceptable, lodged
on time and stated by an authorized person, and, in the new decision has not
replaced the refuted decision, the unit shall be obligated to deliver the
appeal of the unit authorized for settling the appeal, without any delay,
within fifteen days from the day the appeal was lodged.
(2)
The unit shall be obligated to attach all the acts referring to the case.
7. Second instance unit decision upon an appeal
Article 234
(1)
If the appeal is not allowed, on time, or not stated by an authorized person,
and, the first instance unit has failed to refute the appeal due to this
reason, the unit authorized for settling the appeal shall do that.
(2)
If the appeal has not been refuted, the second instance unit shall undertake
the case for settling.
(3)
The second instance unit can reject the appeal, completely or partially revoke
the decision, or change it.
Article 235
(1)
The second instance unit shall reject the appeal when it determines that the
procedure preceding the decision has been implemented correctly and that the
decision is correctly and legally based, and the appeal is ungrounded.
(2)
The second instance unit shall also reject the appeal when it finds out certain
failures in the first instance procedure, although such that could not have had
any impact on the settlement of the matter.
(3)
When the second instance unit finds out that the first instance decision has
been legally based due to some other reasons and not the ones defined in the
decision, it shall explain the reasons in its decision and reject the appeal.
Article 236
(1)
If the second instance unit finds out that there has been an incorrect action
in the first instance procedure that annuls the decision (Article 262), the
unit shall announce the decision invalid, as well as the part of the procedure
made based upon such incorrect action.
(2)
If the second instance unit finds out that the first instance decision has been
brought by an unauthorized unit, it shall revoke the decision by official duty
and the case shall be submitted to the authorized unit for settlement.
Article 237
(1)
When the second instance unit finds out that the facts from the first instance
procedure have been incompletely or incorrectly determined; that the
regulations of the procedure having an impact on the decision have not been
considered carefully throughout the procedure; or, that the disposition of the
refuted decision is unclear or contradictory to the explanation, - the unit
shall complete the procedure and eliminate definite failures alone, or through
the first instance unit or another unit requested. If the second instance unit
finds out that based upon facts determined in the amended procedure, the
activity has to be made differently than at the first instance, the unit shall
revoke the first instance decision by bringing its decision, and, settle the
issue by itself.
(2)
If the second instance unit finds out that the failures from the first instance
procedure shall be faster and more efficiently eliminated by the first instance
unit, it shall revoke the first instance decision by bringing its own by
sending back the case to the first instance unit for a renewed procedure. Hence,
in its decision, the second instance unit shall be obligated to emphasize to
the first instance unit the direction towards which the procedure should be
completed, whereas the first instance unit shall be obligated, without any
delay, to follow the second instance decision completely and within 30 days
from the day the case is received, to bring new decision. The party shall have
the right to lodge an appeal against the new decision.
Article 238
(1)
If the second instance unit finds out that the facts have been assessed
incorrectly in the first instance decision, that out of the determined facts a
wrong conclusion has been made regarding the actual situation, that a legal
regulation has been implemented incorrectly as basis for settling the issue,
or, if it finds out that upon free assessment a different decision was to be
brought, - the unit shall revoke that first instance decision by its own
decision and settle the issue by itself.
(2)
If the second instance unit finds out that the decision is correct regarding
the determined facts and the legal implementation, whereas the objective
because of which the decision has been brought can be gained by other means
more favorable for the party, - the unit shall change the first instance
decision in that sense.
Article 239
(1)
With an objective for correct settlement, the second instance unit can change
the first instance decision due to an appeal, in favor of the appellant apart
for the request determined in the appeal and within the framework of the
request determined in the first instance procedure, if the right of another
individual is not offended.
(2)
With the same objective, the second instance unit can change the first instance
decision based upon the appeal to a disadvantage of the appellant, but only due
to reasons stipulated in Article 258, 261 and 262 of this law.
Article 240
(1)
The provisions of this law referring to the decision in accordance with the
decision shall be also implemented upon decisions referring to the appeal.
(2)
In the explanation of the second instance decision all the allegations from the
appeal have to be assessed. If the first instance unit has already correctly
assessed the allegations in its explanation referring to the appeal, the second
instance unit can refer to the reasons from the first instance decision.
8. An appeal when first instance decision has not
been brought
Article 241
(1)
If an appeal has been lodged by a party upon whose request the first instance
unit has not brought a decision (paragraph 2 Article 214), the second instance
unit shall request from the first instance unit to provide information about
the reasons why the decision has not been brought on time. If the reasons for
not bringing the decision on time are found justified, or result from a fault
of the party, the second instance unit shall determine a time period for the
first instance unit to bring a decision, not longer than one month. If the
reasons why the decision has not been brought on time, are not justified, the
second instance unit shall request from the first instance unit to submit the
documents of the case.
(2)
If the second instance unit can settle the issue based upon the documents for
the case, it shall bring its decision. If not, it shall implement the procedure
by itself and by bringing its decision it shall settle the issue. As an
exception, if the second instance unit finds out that the procedure shall be
faster and more efficiently implemented by the first instance unit, it shall
order the first instance unit to do so and submit the compiled data within a
certain period of time, settling the issue by itself afterwards. Such a
decision shall be final.
9. Time period for bringing a decision upon an
appeal
Article 242
(1)
A decision upon an appeal has to be brought and submitted to the party as soon
as possible, not later than two months from the day the appeal has been lodged,
unless the time period is otherwise determined.
(2)
If the party abandons the appeal, the procedure upon the appeal shall be
terminated by passing a resolution.
10. Submission of the second instance decision
Article 243
The
unit that settled the issue at the second instance shall generally submit its
decision together with the documents of the case to the first instance unit,
responsible for submitting the decision to the parties within eight days from
the day the documents are received.