Answers to Lodged Questions on LGAP

1. Question:

As authorized sports inspector in the City of Skopje, I am conflicted with the contradiction present under the Law on Sports, Article 71, paragraph 3 regarding the Law on Inspection Supervision Article 42. The material Law on Sports stipulates that after I (the authorized sports inspector) perform the inspection supervision, the mayor of the City of Skopje would adopt a Decision (Article 71, paragraph 3), which is contrary to the spirit and legal norms in the Law on Inspection Supervision (Article 42). This calls into question the autonomy and independence in the work of the authorized sports inspector, who is left faced with a dilemma of whether to act in the adoption of any Decision at all, so to avoid violation of any of these laws. This has been also concluded by the administration inspection in several occasions. I would kindly ask you to offer your advice concerning how to efficiently conduct an administrative procedure (inter alia, adoption of adequate Decision upon inspection supervision is an integral part thereto).

  • Answer:

With respect to whom it may concern,

In terms of your question, we specify the following: Pursuant to Article 88, paragraph (6) of LGAP, the administrative act shall be signed by an authorized official, and Article 24, paragraph (3) stipulates that the authorized official shall conduct and complete the procedure. Article 2, paragraph (2) of LGAP anticipates primary application of this law. Taking into account that the Law on Sports, as a separate law, has not been aligned with provisions under LGAP and LIS, in this specific case we advise application of provisions under the Law on General Administrative Procedure and the Law on Inspection Supervision. At the same time, we draw attention to the fact that the Act on Systematization of the institution stipulates that conduct of administrative procedure should be enlisted in the section 'job duties and responsibilities' of each employee assigned to conduct an administrative procedure. 

 

2. Question:

I need advice on the following question. I am authorized to respond to information requests lodged under the instrument for free access to public information, on behalf of the Service. I perform this duty regularly and responsibly for over three years. In 2018, I registered a civic association for protection of administrative servants' rights and for protection of state-owned property, whereby I have been elected to act as president of the association. The Service director has been duly notified in compliance with the law-stipulated deadline. I believe that my position as authorized officer is incompatible to my position in the association, and I would like to request exemption; otherwise I would find myself in a situation wherein I would lodge requests and would respond to my own questions, and this, I believe, is a blatant example of incompatibility. I kindly ask you to provide your opinion on this matter.

  • Answer:

With respect to whom it may concern,

Article 25, paragraph (1) of the Law on General Administrative Procedure stipulates the following: With a view to ensure impartiality of the authorized officer, the officer in question shall not participate in the administrative procedure if one or more of the following situations arise:


- the officer has direct or indirect personal interest in the case in question;
- the officer is related by blood with the party or representative of the party in a straight line or in a collateral line to the fourth degree, is a spouse or common-law partner, or relative to the spouse to the second degree, even in cases when the marriage or de facto relationship has ceized to exist;
- the official has a status of a guardian, adoptive parent, adopted child or provider to the party;
- the official or officials enlisted under lines 2 and 3 of this paragraph has/have participated in the procedure as party, witness, expert, attorney or representative of the party;
- the official or officials enlisted under lines 1 and 2 of this paragraph have a direct or indirect interest in a case related to the case in question;
- a court proceeding is initiated between the parties and the official or officials enlisted under lines 2 and 3 of this paragraph ;
- the official or officials enlisted under lines 2 and 3 of this paragraph are debtors or creditors to the parties;
- the official receives compensation from the party or is member of the administrative board, supervisory board or similar body of the party;
- the official or officials enlisted under lines 1 and 2 of this paragraph have received gifts from the parties prior to or following initiation of the administrative procedure; or
- the official has already participated in the operation during the first-instance procedure.

Paragraph (2) of the same Article stipulates the following: Should any of the situations enlisted under paragraph (1) of this article arise, the official, i.e. the member of the collegial public body shall, without any delays, request  exemption from participation in the proceeding from his/her supervisor, i.e. collegial public body. We would also like to underline provisions under the Law on Free Acess to Public Information, wherein Article 8 paragraph (1) stipulates that every holder of information shall appoint one or more officials to act as mediators in exercise of the right to public information. This provides an opportunity to appoint another person to act upon the case covered under your question. Taking into account that the body responsible for implementation of the Law on Free Access to Public information is the Commisson for Protection of the Right to Free Acess to Public Information, we would like to draw attention to the opportunity to request opinion from this body as well. This is due to the fact that the particular question is not subject to regulation under the Law on General Administrative Procedure.

 

3. Question:

When a first-instance administrative procedure is initiated, should the official assuming the position of manager of depratment that signs administrative acts participate in the procedure, while knowing that the proxy of the party is his/her son and the documents used to decide in the administrative procedure have been prepared by a member of the immediate family (spouse, son, daughter)?

Answer:

With respect to whom it may concern,

It is evident that the Law on General Administrative Procedure, including Article 25 that regulates exemption of official from participating in administrative procedure in certain situations, distinguishes between the terms 'proxy' and 'representative'.

Given the contents of your question, a potential conflict of interest may exist in your case. However, due to the fact that the question is subject to regulation under the Law on Prevention of Corruption and Conflict of Interest ("Official Gazette of the Republic of Macedonia“ no. 12/19), we suggest you to lodge your question to the State Commission for Prevention of Corruption, as the body responsible for implementation of this law.