Law
No.
8485, date 12.5.1999
THE
CODE OF ADMINISTRATIVE PROCEDURES OF THE REPUBLIC OF ALBANIA
Based on the articles 81
and 83 point 1 of the Constitution, upon the proposal of the Council of
Ministers,
THE
ASSEMBLY
OF
THE
REPUBLIC
OF
ALBANIA
DECIDED:
FIELD OF APPLICATION AND DEFINITIONS
The provisions of this Code
shall be implemented by all Organs of Public Administration while exercising
their functions through individual acts.
The principles provided in
this Code shall be implemented as well for normative acts when such thing is
possible.
The general principles of
administrative activity provided in this Code are mandatory for all
administrative acts, even to those undertaken in the frame of private law.
The general principles of
this Code, by law may become mandatory applicable for the activity of private
subjects when this activities affect the public interests.
This Code shall be
implemented by natural and legal persons, to whom the right of exercising the
public duties and competencies is issued by law, sub-legal act or contract.
The provisions of this Code
will not apply for the acts of public administrate, regulated by private law.
Article 2
1. The activity of the administrative bodies is the entirety of the
acts and actions through which is composed of and manifested the will of the
Public Administration Offices as well as the execution of this will.
2. The forms of the administrative activity regulated by this law
are:
-
collective
and individual administrative acts;
-
administrative
contracts/public; and
-
real
acts
In the meaning of this Code, the bodies of public
administration are:
-the bodies of central power which exercise
administrative functions;
-bodies of public entities to the extent they
exercise administrative functions;
-the bodies of local power exercising administrative
functions;
-the bodies of Army Forces, as well as any other
structure, whose staff enjoy the military status, as long as they carry out
administrative functions.
Article 4
The
interested party at an administrative procedure shall be defined as every
physical person, juridical or state authority, the rights and legal
competencies of any of whom, individual or common, are likely to be dealt with during the
administrative procedure.
Article 5
A real act shall be defined as that
form of administrative imposition, when the will of the public administration
is expressed with such means as signs, forewarnings, tables, and public
information, etc.
Article 6
Administrative
Agreement
The administrative contract
is an agreement, where at least one of the parties, is a body of public
administration and which creates, amends or extinguishes a legal relation of
public law.
Article 7
Discretionary Power (discretion)
Discretionary
power of public administration shall mean the right of the latter to exercise
the public authority for accomplishment of a legal objective, even without an
expressed authorization of the law
Article 8
Revocation and
Abrogation
The
revocation and abrogation are those administrative acts which interrupt the
legal effectiveness of other administrative acts.
CHAPTER II
GENERAL
PRINCIPLES
Article 9
Principle of
Legitimacy
1. The Bodies of the Public Administration Offices exercise their
activity pursuant to the law and principles of law, within the limits of the
competencies granted to them and in conformity with the purpose for which these
competencies have been granted.
2. The administrative acts issued in an emergency state contrary to
the provision of this Code, are valid only if the required result can not be
achieved by other means. The damaged
parties by the above-mentioned acts have the right to be reimbursed for the
eventual losses based on the legal provisions, which regulate the
responsibility of the Public Administration Offices.
3. The Public Administration Offices can not directly apply the
constitutional provisions if in the field in question laws of common order
exist.
Article 10
Principle of
Protection of Public Interest and Citizens Rights
The Public Administration
Offices protects the public interest as well as the legitimate citizens’
rights.
Article 11
Principle of
Equity and Proportionality
1. In the relations with the individuals, the Public Administration
Offices are guided by the principle of equity.
This means that no one should be privileged or discriminated because of
family origin, sex, race, language, birthplace, political, religious or
cultural pertaining, social and economics conditions.
2. The decisions of the public administration offices, which
conflict with other legal acts protecting the fundamental rights of the
individual or personal interests, may have effect only to the extent the said
decisions are in proportion with their purpose.
Article 12
Principle of
Justice and Impartiality
The Public Administration
Offices, in exercising their functions, treats equally and impartially all the
subjects with whom they enter in relation.
Article 13
Principle of
Cooperation of the Public Administration Offices with Private Persons
1. Public Administration Offices' Bodies exercise
their activity in close cooperation with private persons by:
a) providing information and
necessary clarifications to individuals;
b) supporting and
stimulating the initiatives of individuals as well as welcoming their
suggestions and information.
2.
Public
Administration Offices are responsible for the written information
they provide to the private persons even in case the
providing of information is not mandatory.
In the decision-making
process, the bodies of the Public Administration Offices assure the
participation of the private persons and/or associations if the interests of
the groups they represent are infringed from these decisions. Pursuant to this Code, the bodies of the
administration offices should confer to these subjects the possibility to
express themselves.
Article 14
Principle of
Responsibility
The bodies of public administration and the
employees are responsible for the damages they cause to the private persons
through:
-
unlawful
decision-making
-
unlawful
denial of decision-making: and
-
issuing
inaccurate written information to the private persons, as well as for any other
cause or other case provided by law.
Article 15
Principle of
Decision-Making
1. Pursuant to this Code, the administrative bodies take decisions
concerning all cases within their jurisdiction, submitted by the private
citizens, which are related to:
a) cases dealing directly
with private citizens;
b) any petition, request or
claim concerning violation of the Constitution and the law or the protection of
public interests.
2. The competent administrative body, is not obliged to review a
case, if during the last two years it issued a decision related to the same
case, submitted by the same individual and based on the same facts. In this case the calculation of the 2 years
time limit starts from the day of the submission of petition (principle of a
case ruled upon.)
Article 16
Principle of
Efficiency and Bureaucratization
1.
The
Public Administration Offices shall be structured in a way to ensure a
sufficient access in the decision-making process.
2.
The
Public Administration Office and its employees are obliged to serve the public
in the most effective possible way in each and every case.
Article 17
Principle of
Non-Payment of the Service
1. The services of the Public Administration Offices are free of
charge for the service offered by the Administration Offices, unless law
provides a payment.
2. The administration offices does not require the payment of taxes
or expenses provided in paragraph 1 of this article, in case impossibility to
pay is proved.
Article 18
Principle of
Internal and Judicial Review
In order to protect the constitutional and legal
rights of the individuals, the administrative activity will be subject to:
a)
the
internal administrative review in accordance with the provisions of this Code
concerning the administrative appeal; and
b)
the
judicial review in accordance with the provisions of the Code of Civil
Procedure.
Article 19
Principle of State Secret Protection and
Confidentiality
The person who exercises duties in an administrative
body or participates or is called to take part in an administrative procedure
is obliged to not divulge the data of administrative procedures, when they are
classified state secret or have a personal character.
The participants of an
administrative procedure have the right to request that personal data is not to
be declared by them or to be divulged by administrative bodies without their
consent.
Article 20
Right to be
informed
Every person participating
in an administrative procedure has the right to be informed on and to have
access to the documents used during the procedure, unless limits defined by
law.
The
right mentioned in the first paragraph of this article may be exercised
personally or through an authorized representative.
The
administrative body, developing the administrative procedure, is obliged to
grant information to the participants concerning their rights and duties.
PART II
ADMINISTRATIVE
POWERS AND JURISDICTION
GENERAL RULES
Article 21
No Right to Waive
from the Issues and Prohibition to Transfer Them
1. The competencies and their exercise provided by law or by a
sub-legal act is mandatory, unless the delegation or replacement of
competencies is provided by legal norms.
2. All acts and contracts
the object of which is the right to waive from exercising of competencies
entrusted to the administrative bodies are invalid, except in case of the
delegation of competencies and other similar situations.
Article 22
Jurisdiction
1. The jurisdiction is settled at the moment the administrative
proceeding starts and any later change that might happen in fact is not
relevant.
2. Any legal changes will have no effect, unless the body, which
performs the proceeding does not exist any more, has no jurisdictions or gains
the jurisdiction it did not have in the beginning of the proceeding.
3. If the territorial jurisdiction of a body is transferred to
another body, the proceeding shall automatically be transferred to the latter
by means of an official order.
Article 23
Preliminary
Issues Settled by Other Bodies
1. If a final decision in an administrative proceeding is pending by
a preliminary decision to be taken by another competent administrative body or
court, the body which is competent to take the final decision suspends the
respective proceeding until the preliminary decision is taken by the other
administrative body or court. Exception
from this rule is made only if the immediate non-making of the decision causes
damages to the legal interests of the parties.
2. The suspension terminates by itself in the following cases:
a) the other decision is
conditioned by the claim of the interested parties, and the latter do not
submit it within 30 days or the administrative proceeding for the settlement of
the preliminary issue has not taken place within 30 days, due to the fault of
the interested party.
b) as the result of the
interference of other factors the non-making of the decision causes
considerable and/or irreparable damages.
3. In case the body which is competent to take the final decision
does not wait for the preliminary decision to be taken by the other body or
court, but takes the preliminary decision by itself, the latter has effect only
to the administrative proceeding which leads to the taking of the final decision.
Article 24
Conflict of
Territorial Jurisdiction
In cases of ambiguity or
doubt related to the territorial jurisdiction, the body which shall settle the
conflict recognizes the jurisdiction of the body whose location, as the body
that examines the case, has greater possibility to settle it properly.
Article 25
Verification
of Jurisdiction
1. The administrative body shall verify if it has jurisdiction to
settle a case before taking a decision.
2. The issue of lack of jurisdiction can be claimed by the
administrative body on its own initiative as well as by the interested parties.
Article 26
Submission of
a Request to a Body without Jurisdiction
1. If as a result of an acceptable mistake (by unawareness) and
within a defined time limit, a person makes a claim, request, petition, to a
body that does not have jurisdiction (is incompetent), this procedure shall be
followed:
a) if the competent body
belongs to the same ministry or institution the claim, request, or petition,
will be sent to it by an official order (motion) notifying at the same time
even the person who made the claim, request or petition;
b) if the competent body
belongs to another ministry or institution, the claim, request, or petition
will be returned to the person within 48 hours accompanied by the information
regarding the specific body of the administration offices the person ought to
be directed.
2. In the case provided in paragraph 1, item b) of this Article, the
new determined time limit for the performance of the proceeding is the same as
the first. It starts to be calculated
from the moment the competent body is notified.
3. Pursuant to the general
principles of the law, the request for the examination or appeal can be made
against any decision, which states the existence of a mistake.
CHAPTER II
Article 27
Delegation of
the Competencies
1. In cases provided by law, the competent administrative bodies can
delegate their competence to another administration office body.
2. The competent administrative bodies may delegate this competence
to their subordinate bodies.
3. The above paragraphs of this Article can be applied, to the
appropriate extent, in cases of delegation of the competencies of collegial
bodies to their presidents.
Article 28
Sub-delegation
of the Competencies
1. The body which delegates a competence can not authorize the
delegated body to sub-delegate this competence to another body, unless
otherwise provided by law.
Article 29
Criteria for
the Delegation
1. In cases of delegation, the body which delegates defines the
delegated competencies or describes which are the acts that can be issued or
applied by the delegated bodies.
2. The delegation of the competencies are published in Official
Gazette. The local administration
office publishes the delegation and in the local Official Gazette or in its
absence, a notification is posted in public places.
Article 30
Specification
of the Delegation
While exercising the
delegated competencies, the delegated body shall be specified.
Article 31
Competencies
of the Delegation
1. The delegating body issues directives or instructions, which are
mandatory to the delegated bodies while executing the delegated competencies.
2. The delegating body is entitled to regain the delegated
competencies and to revoke any act or action undertaken by the delegated bodies
contrary to the provisions on the validity of the administrative acts provided
by this law.
Article 32
Termination of
the Delegation
The delegation of the
competencies terminates:
a) by revoking the act of
delegation;
b) by terminating the
exercise of the duties as well as by the non-existence of the body which
delegates and or of the delegated body.
The
rules provided by this code for the delegation shall be implemented also for
the sub-delegation, in cases it is allowed by law.
Article 34
Replacement
1. In cases of absence, impossibility or physical incapability to
act or for any other legal impediment of a body, the duties are exercised by
the replacing body or person provided by law.
2. If the law is silent, the replacement in exercising the duties
will be made by the oldest civil servant of the body that comes right after him
in the hierarchical level.
3. In exercising the functions of the replacing person are included
the delegated competencies of the replaced person.
CHAPTER III
Settlement
of the Jurisdictional Conflicts of Competencies
Article 35
Competence to
Settle Conflicts
1. The jurisdictional conflicts are settled by the competent courts.
2. The conflicts of the competencies are settled:
a) by the administrative
sections of the courts when dealing with different administrative bodies;
b) by the Prime-Minister for
different Ministries;
c) by the Minister or the Director
of the central institution when dealing with bodies of the same Ministry or any
other body of the central administration offices.
3. The conflicts of the competencies are settled in first instance
by the body immediately above the bodies involved in the conflict and which has
supervisory competencies.
Article 36
Motion and
Time Limit for the Administrative Settlement of Disputes
1. The settlement of disputes among various administrative bodies is
requested in writing by the interested parties. The request is submitted to the competent body to settle this
conflict and shall include the justifying reasons. The settlement of the dispute may be requested also by the body
in conflict form the moment it is aware of the conflict.
2. The competent body for the settlement of this conflict hears the
bodies in conflict and takes a decision within a time limit of 30 days.
Guarantee of Impartiality
Article 37
Disqualification
Cases
1. No civil servant may participate in an administrative decision-making
process or may represent the administration offices' part in a
contract, in cases the civil servant has or/and is suspected to have the
following vices:
a) he has a direct or
indirect personal interest in the case in question;
b) his spouse, the person
living with him, or kinsman up to the second degree have a direct or indirect
interest in the case in question;
c) the civil servant or the
persons provided in the above paragraph, have a direct or indirect interest in
a case similar to the case in question;
d) the civil servant has
been an expert, counselor or lawyer in the case in question;
f) against the civil servant
or civil servants mentioned in paragraph b) of this Article has started a court
proceeding by the interested parties;
g) the case consists of an
appeal to a decision taken by the civil servant or persons provided in
paragraph b) of this article;
h) the civil servant or
persons provided in paragraph b) of this Article are debtors or creditors of
the interested party in an administrative proceeding or contract in which the
Public Administration Offices are a party;
i) the civil servant or
persons provided in paragraph b) of this Article have received souvenirs [gifts?] from the interested party in
the administrative proceeding or the contract before or after the
administrative proceeding has started or the contract is created;
j) the civil servant or
persons provided in paragraph b) of this Article have amicability or hostility
with the interested party in the administrative proceeding or the contract.
Article 38
Arguments and
Declaration of Disqualification
1. In case a civil servant is prohibited from participating in the
decision-making process or in an administrative proceeding pursuant to Article
44, he shall immediately notify his supervisor or president of the collegial
body.
2. Until the final decision is taken, each interested party can
request the prohibition of the participation of a civil servant in a
decision-making process or in an administrative proceeding, stating the reasons
why requesting such an action.
3. The supervisor or the president in case of a collegial body takes
a decision to expel from the decision-making process or administrative
proceeding the civil servant if requirements of Article 37 are fulfilled.
4. In cases of expulsion of the president from the decision-making
process or administrative proceeding pursuant to Article 37, the decision for
expulsion is made by the collegial body itself, but without the participation
of the president.
Article 39
Effects of the
Disqualification
1. In the cases provided by paragraph 1 and 2 of Article 38 the
civil servant shall interrupt any actions as long as the supervisor does not
order otherwise.
2. Despite the disqualification of the subjects in cases provided in
Article 37, these subjects are obligated to exercise their competencies in
emergency cases with the condition that these actions shall be ratified by the
replacing subject or by the collegial body.
Article 40
Effects of the
Declaration of the Disqualification
1.
Immediately after the declaration of the disqualification of the civil
servant in question, the latter will be replaced by his legal deputy, unless
the supervisor examines the case under his authority.
2. In cases
of the collegial body, it will continue its normal function without the
participation of the disqualified member.
Article 41
Formulation of
the Request
1. In the cases provided in Article 37 the request of the interested
party for the disqualification of the civil servant of the administrative body
is directed to the body which is competent for disqualification cases. The request states clearly the facts on
which it is based.
2. In case the request for the disqualification is made by the civil
servant it shall be in writing, if the body to whom the request is directed
requests such a thing.
3. In case the request is made by the interested parties in a
proceeding, act or administrative contract, the affected civil servant has the
right of defense.
Article 42
Decision-Making
Related to Disqualification
The decision related to
disqualification is taken within 5 days.
Article 43
1. The acts
and the contracts involving the civil servants of the administrative bodies
affected by the disqualification provision are not valid.
2. Any
failure in the obligation of the civil servant to declare the existence of
disqualifying cause, pursuant to paragraph 1 of Article, 38 constitutes a grave
disciplinary violation.
PART FOUR
INTERESTED
PARTIES FOR ADMINISTRATIVE PROCEEDING
Article 44
Participation
in the Administrative Proceeding
1. Everyone who has a legal interest has the right to participate
personally in the administrative proceeding or/and to be represented.
2. The capability to participate in an administrative proceeding is
regulated pursuant to the provisions of the civil law on the legal capability
to act.
Article 45
Legitimacy
1. The holders of the rights and legal interests affected from the
decisions taken by the administrative proceeding, have the right to start and
participate in the administrative proceeding.
Associations and organizations are entitled to the above rights.
2. In order to protect the wide interests affected by the
administrative proceeding, these have the right to start such a proceeding
and/or to participate in it:
a) the persons to whom the
administrative proceeding causes or might cause damages in the common rights,
i.e. public health, education, cultural inheritance, environment as well as
quality of life.
b) the person who live in or
close to a public property which might be damaged by the administrative
proceeding.
3. The associations acting to protect the wide public interest are
entitled to start or to participate in the administrative proceeding.
PART FIVE
ADMINISRATIVE
PROCEEDING
GENERAL
PROVISIONS OF ADMINISTRATIVE PROCEEDING
Article 46
The administrative
proceeding may start upon the initiative of the administration offices or upon
request of the interested parties.
Article 47
Communication
with the Interested Parties
1. The start of the proceeding with the initiative of the
administration offices shall be communicated to the persons whose rights and
legal interests may be affected as a result of the actions undertaken during the
proceeding, if these persons can be identified.
2. The administration offices are not obliged to communicate with
the interested parties in cases when the case is secret or confidential
pursuant to the classification made by law or when the communication might
compromise the efficiency of the proceeding.
3. In the notification directed to the interested parties shall be
described the administrative body which started the proceeding, date of start
as well as the purpose of the proceeding.
Article 48
The Proceeding
Started by the Initiative of the Public
Even in cases when the
initiative for the start of the administrative proceeding comes from the
public, in the meaning of Article 52, the administration offices shall
undertake all the steps they deem necessary to prepare the case, even for
problems not included in the submitted request, if they deem it in the interest
of the public.
Article 49
General Time
Limits for the Termination of the Proceeding
1. The administrative proceeding terminates within a period of 3
months, unless otherwise provided by special laws or unless special situations
are imposed. In cases of special
situations, the administrative proceeding terminates within 3 months after the
special situation is terminated.
2. The failure to respect the time limits given in paragraph 1 is
justified by the responsible administrative body to the upper body in the
hierarchical level, within 10 days from the termination of the 3 months time
limit or of the interruption of special situation.
Article 50
Demand of the
Opinion of the Interested Parties
The administrative body may
demand the opinion of the interested parties at any phase of the
proceeding. The opinion shall be
submitted to the administration offices within the determined time limit.
The
opinion may be demanded with regard to any case.
CHAPTER II
THE RIGHT TO
BE INFORMED
ARTICLE 51
1.
Every
person enjoys the right to be informed by the administration in relation to the
development of the proceedings for which the person is directly
interested.
2.
On
the information given by the administration, it is shown the organ that
develops the proceeding, concrete steps undertaken by it, decisions taken as
well as any other relevant information.
3.
Article 52
Inspection of
Files and the Issuance of Certificates
The
interested parties have the right to inspect files managed by the
administration, when these do not contain information classified as secret, and
take certificates or certified copies of documents that they contain in
exchange for payment.
Article 53
Issuance of
Certificates
1.
The
competent civil servants are obliged to issue to the interested parties, within
10 days from the submission of the request without needing to wait for order of
the superiors, certificates or authentic copies which include all or a part of
the following information:
a)
date
of submission of the application, petitions, requests for review, appeals, and
other similar documents;
b)
content
of these documents or claims of the parties;
c)
phase
of the performance of the proceeding;
2.
If
documents requested by the parties are classified as secret, the competent
civil servant shall issue to the interested party (upon request) a declaration
to certify the confidentiality.
Article 54
Limits of the
Rights to be Informed
1.
The
rights provided in Article 58 to 61 belong to persons who although they have no
direct interest, prove to have a legal interest to be aware of specific
documents.
2.
The
exercise of rights provided in the previous paragraph is possible only upon
issuance
of an order from the head of the administrative entity. The order is accompanied by a written
request and other attached documents certifying the claimed legal interest.
Article 55
The Principle
of Open Administration Offices
1.
Everyone
has the right to be familiarized with the files and registers of administration
offices, even though an administrative proceeding in which they are interested
in is not in progress, unless prohibited by law.
2.
The
right to be familiarized with the files and registers of the administration
offices is regulated by a special law (data processing).
CHAPTER III
NOTIFICATIONS
AND TIME LIMITS FOR THEIR PREPARATION
SECTION I
Notifications
Article 56
Obligation to
Notify
The interested parties shall
be notified for all the administrative acts by means of which:
a) decisions are taken
related to their claims;
b) obligations or
punishments are decided or damages are caused;
c) the interests or
legitimate rights of the parties are established, withdrawn, expanded or
limited, or the conditions of their exercise are affected in any other way.
Article 57
Exception from
the Obligation of Notification
1. In the following cases there is no obligation of the
administration offices to make a written notification related to the
administrative acts:
a)
the administrative acts are communicated orally in the presence of the
interested parties;
b)
the interested party participates in the performance of the administrative
proceeding and manifests complete knowledge related to the discussed
administrative act.
2. The calculation of the time limits starts
from the day that follows the day in which the act is issued or the day the
interested parities participate in the administrative proceeding.
Article 58
Content of the
Notification
1. The notification shall include the
following:
a)
complete text of the administrative act;
b)
name of the person responsible for the act and the date of the latter;
c)
body which has the jurisdiction to decide on the appeals against the act and
time limits for this purpose, if the act can not be appealed to the court.
2. The complete text of the act can be replaced
with the summary of the content and its object, in cases the act fulfills
completely the requests formulated by the interested parties, or provides
procedural measures.
Article 59
Time Limits
for the Notifications
The
administrative acts shall be notified within 8 (eight) days, unless otherwise
provided by law.
Time
limits are counted starting from the day when the act is issued or the day when
the interested parties take part in the administrative proceeding.
Article 60
Form of
Notification
1. The notifications will be made:
a)
by mail, on the condition that there exist a postal service from door to door
in the locality of residence or work of the party that shall be notified;
b)
personally, in case this form of notification does not compromise the rapidity
of the performance of the proceeding or if the notification by mail is
impossible;
c)
by telegram, phone, telex or facsimile in urgent cases;
d)
by a public announcement which will be posted in public places, or by an
announcement published in the Official Gazette, in a local newspaper or in the
two best sold newspapers in the residence place or work of the parties who
shall be notified, in cases the interested parties are unknown or in such a
number that any other form of notification is evaluated as inappropriate.
2. In case the notification is made by
telegram, phone, telex or facsimile, it shall be confirmed by the body that
makes the notification in the form provided by subparagraph a) and b) of the
above paragraph, the following day of work, although the rule is that the
notification is considered made the day of its communication to the parties.
SECTION II
Time
Limits for the Implementation of the Administrative Acts
Article 61
General Time
Limit
1. Without prejudice to Article 106 and 107 of this law and other
special cases, the time limit for the implementation of the acts by the administration
offices is 15 days.
2. There is a 15 days time limit within which
the interested parties implement the act, demand the taking of procedural
measures for its implementation, solve the cases for which the parties might
express their opinions or exercise any other rights during the performance of
the proceeding, too.
Article 62
Calculation of
Time Limits
When
calculating the time limits the following rules are applied:
a) in calculating the time
limits the day in which the act is issued is not included;
b) in calculating the time
limit the Saturdays, Sundays and official holidays are excluded;
c) in case the termination
of the time limit falls in a day the implementing administration offices is
closed or functions with reduced hours, the implementation of the act is
postponed to the following day of work.
Article 63
Extension of Time Limits
If the parties affected by
the implementation of the act live or are temporarily not in the territory of
the Republic of Albania or are in rural areas, the time limits provided by law
start to be calculated only after:
a) 5 days, if the interested
parties are located in rural areas;
b) 15 days, if the
interested parties are located in a European country; and
c) 30 days, if the
interested parties are located in a non-European country.
Article 64
Reinstatement
of the Time Limit
When one party to the administrative
proceeding, not due to its fault, has been hindered in respecting the time
limit provided by this Code and other legal provisions, it has the right to ask
for the reinstatement of the missed time limit, except for the cases when the
law excludes this right.
The request for the reinstatement of
the time limit shall be made within 15 days from the day when the hindrances
have been removed, but no later than one day from the last day of the missed
time limit, except on cases of major force.
The request of the interested party
for the reinstatement the time limit shall be reasoned and shall ensure
confidence that the time limit was missed not due to the party’s fault.
Article 65
Review of the
request for the reinstatement of the time limit
1.
The
request for the reinstatement of the time limit is reviewed by the organ that
carries out the administrative proceeding.
2.
The
decision that opposes the request mentioned in paragraph 1 of this article, is
appealed according to the rules provided for by this Code.
CHAPTER IV
PERFORMANCE OF
THE PROCEEDING
SECTION I
Starting
Article 66
Initial
Request
1. Unless otherwise provided by law, the initial petition of the
interested parties is prepared in written and shall include:
a) name of the
administrative body to whom it is directed;
b) complete name of the
applicant, civil state, profession, and residence;
c) explanations of facts
related to which the petition is made, as well in case it is possible, the
legal basis of the petition;
d) clear explanations
related to the claims;
e) date and signature of the
applicant or of any other person legally authorized by him in case the
applicant does not know to write.
2. No application shall consist of more than one request, with the
exception in case the requests are alternative or in subordinate relations with
each other.
Article 67
Formulation of the Petition Orally
In cases where the law
allows the formulation of a petition orally, it shall be accompanied by a
written document which shall include the issues provided in item a) and b) of
the first paragraph of the previous Article.
The document shall be dated and singed by the applicant and civil
servant who receives the petition.
Article 68
Defect of the Initial Petition
1. If the initial petition is not prepared pursuant to the
requirements of Article 72, the applicant is requested to correct the existing
defects.
2. Despite the content of the first paragraph, the bodies of the
administration offices and state civil servants try to arrange by themselves
the defects of the petition in order that the interests of the parties would
not be compromised by any simple irregularities or by any imperfect formulation
of the claim.
3. The administration offices do not accept the anonymous petitions
and those with not understandable claims.
Article 69
Submission of the Petition
1. With the exception of the cases provided in the following
paragraphs, the petitions are submitted to the bodies of the administration
offices to which those are directed.
2. The petitions directed to the central bodies of the
administration offices can be submitted to the local offices which depend on
those central bodies, if the interested parties live in the locality where the
local offices are located.
3. If there is no local office of a certain central administrative
body, the petition can be submitted to the prefecture.
4. The petitions discussed in paragraph 2 and 3 are submitted to the
competent bodies by registered mail within three days from their receipt.
Article 70
Submission of the Petitions to the Embassies or Consular Offices
1. Petitions can be submitted to the embassies, consular offices or
other missions located in the place where the interested parties live or are
physically.
2. The embassies or consular offices send the petition to the bodies
to which it is directed stating the date on which the petition arrived at their
offices.
Article 71
Petitions Sent by Mail
The petitions addressed to
the administrative bodies, in case sent by mail, the postal service shall ask
for the signature of the receiver, unless otherwise provided by law.
Article 72
Registration of the Received Petitions
1. Despite the form of delivery of the petitions, their arrival is
always registered. The respective register shall include the number of the
petition, date of the submission, object of the petition, number of documents
attached and the name of the applicant.
2. Petitions are registered pursuant to the
order of submission and the petitions, which come by the same postal pack, are
considered as submitted at the same time.
Article 73
Certificate
for the Submission of the Petition
1. The interested parties can ask for a certificate, which proves
the submission and receipt of the petition.
2. The certificate shall state the fact of
receipt by the civil servant of the administration offices and the list of the
attached documents.
Article 74
Other Written
Documents Submitted by the Interested Parties
The
provisions of this section apply also to the explanations, requests for review,
answers and other written documents submitted by the interested parties.
Preliminary
Verification of Some Issues during the Regular Proceeding
Immediately
after the arrival of the petition, the administrative body preliminary
certificates the following issue:
a)
if the body has the jurisdiction or not;
b)
the automatic termination of the rights whose exercise is requested;
c)
legitimate of the applicants;
d)
termination of the time limits within which the application shall be submitted.
Article 76
Silent
acceptance of the petition
1.
When
the execution of an administrative act, or the exercise of a right of an
individual, is conditioned on the approval or authorization of the
administration, excluding cases when the law provides differently, the
execution of the act or the of the right may be proceeded with, in case the
corresponding decision is not issued within the time limit provided by the law.
2.
In
those cases when the law does not provide for any time limit, the time limit
for the silent acceptance due to the non respond shall be 90 days from the date
the petition’s submission.
3.
The
following are the cases that require the authorization/approval of the
administrative bodies:
a)
licenses
for conduct of construction activities;
b)
permits
for the building and destination of the land for construction;
c)
work
permits for foreigners;
ç) permits
for foreign investments;
d)
permits
for 24 hours work;
dh) authorizations
for the work with shifts.
4.
time
limits provided by law and in the second paragraph of this article are annulled
in cases when the proceeding is interrupted for reasons for which the
individual is responsible.
Article 77
Silent
Non-Acceptance of the Petition
1.
Regardless
of the content of article 76, in case of
the non-issuance of a final decision within the legal time limit,
concerning a claim to the competent administrative body, the interested parties
are given the right to think and act as if their petition has been rejected.
2.
The
time limit mentioned in paragraph 1 of this article is 90 days with exception
of cases when the law provides differently.
3.
With
exception of cases when the law provides differently, the time limit mentioned
in the second paragraph of this article is calculated as follows:
a)
from
the date when the request has been registered as received (entered) in the
competent department, if the law does not require the fulfillment of particular
formalities on the preliminary work before the decision is issued;
b)
from
the end of the time limit determined by law for the conclusion of these
formalities, or when a time limit does not exist, by the end of a three-month
period from the presentation of the petition;
c)
from
the day when the notice for the conclusion of the mentioned formalities has
been taken.
SECTION II
Article 78
Cases in which
Intermediate Decisions can be Made
1. The administrative body which is competent to make the final
decision, can also take an intermediate decision, in cases where it is deemed
that not taking such measures will cause a grave and irreparable damage to the
public interest.
The intermediate decisions can be taken upon the
initiative of the administrative body or with the request of the interested
parties.
2. The decisions for making intermediate
measures shall be justified and shall have a defined time limit.
3.
The revocation of the decision for the intermediate measures shall be
justified, too.
The intermediate decisions
automatically terminate in the following cases:
a) upon issuance of the
final decision,
b) upon termination of the
time limit defined for the intermediate decisions,
c) upon termination of the
time limit within which according to the law, the decision should have been
taken.
d) in case there is no time
limit defined by law, the intermediate decisions terminate automatically, after
6 months from the date the proceedings started.
SECTION III
SUBSECTION I
1. The investigation procedure is carried out by the administrative
body under whose competence is the taking of a final decision.
2. The competent body for taking the decision may delegate the right
to carry out the investigation procedure to its subordinate body, unless the
delegation is specifically prohibited by law.
3. The competent investigating body may order the subordinate body
specific investigation duties.
4. In case of collegial bodies, the delegation of competencies
provided by paragraph 2, may be done in favor of individual
members of the body itself or of a subordinate body.
1. The competent body requires and examines all the necessary
evidence to take the final decision, using for this purpose all the evidence
methods allowed by law.
2. There is no need of verification for the evidence known publicly
and the evidence known by the administrative body because of its function.
3. The competent administrative body ensures the use of the evidence
known by it because of its function during the administrative proceedings.
1. Without prejudice to paragraph 1 of the previous Article, the
burden of proof concerning the pretended evidence falls on the interested
parties.
2. The interested parties may attach documents or opinions or may
require the taking of security measures by the administration offices for
securing the necessary evidence to take the final decision
3. Without prejudice to Article 11, paragraph 1, the expenses
incurred because of the actions undertaken by the administration offices to
secure evidence, are covered by the requesting interested party.
1. The investigating body may
require the interested parties to submit information, documents or objects,
which are subject to inspection and to any other form of investigation, in
order to prove the claims.
2. The interested parties may refuse the cooperation as provided by
the previous paragraph, in case it:
a) conflicts with
professional confidentiality;
b) spreads information whose
knowledge is prohibited by law;
c) makes known compromising
information related to the interested party itself or its spouse, parent,
child, brother, or sister;
d) makes known information
which causes financial or non-financial losses to the interested party or to
each of the persons specified in the previous paragraph.
1. In cases where the submission of information or evidence by the
interested party is needed, it shall be notified concerning this in writing or
orally, within the time limits and pursuant to the following conditions.
2. In case the interested party does not live in the locality where
the investigating administrative body is located, upon the decision of this
body, the oral notification can be made by means of another body which is
located in the residence place of the party, if the party does not prefer to
present itself to the competent body.
Article 85
Non-Submission of Evidence
1. If the interested parties do not answer the notification offering
them to exercise each of the rights provided in the previous Article, the
administration offices can make a new notification or can interrupt the
proceeding, if such a thing compromises any public interest.
2. The failure to answer the notification can be taken in
consideration for purposes of evidence, pursuant to the circumstances, but in
any other case this does not relieve the administration offices from the
obligation of requiring evidence and facts and of taking a final decision.
The competent investigating
body may require from other bodies of the central or local government the
taking of the measures to secure the evidence, in the cases this can not be
carried out by itself.
1. In cases there are reasons to deem that the
securing of the necessary evidence for the taking of the decision may become
impossible or difficult , the competent body, on its own initiative or by the
justified request of the interested parities, can proceed with the preliminary
securing of the evidence.
2. The preliminary submission of the evidence
can be made even before the start of the proceeding.
Article 88
Expenses for
finding the evidence
Expenses resulting as a consequence of actions
undertaken by the administration for finding the evidence are covered by the
interested party that seeks them, despite the provisions of the second
paragraph of article 17 of this Law.
Subsection II
1. The examinations, reports, assessments, and other similar
measures are taken only by (one or more) specialized experts.
2. The specialized bodies of administration offices may be required
to take the measures provided by this article.
3. The procedure for appointment of the experts as well as their
remuneration is regulated by means of special law.
1. The interested parties are notified with regard to the measures
of this kind, their purpose, as well as the expert or experts appointed by the
administration offices, unless the measures in question are related to secret
or confidential issues.
2. The above
provided notification is made 10 days in advance of the examination date or
other measures, and it shall include the date, time, and location of the
execution of these measures.
Any time the administration
office appoints experts, the interested party is entitled to appoint the same
number of experts as the administration offices.
1. The investigating body and the interested parties may formulate
the questions to be answered by the experts or may require their opinion for
certain issues.
2. The investigating body refuses the submission of questions by the
interested party concerning secret or confidential issues.
SUBSECTION III
1. After the end of the investigation procedure, with exception of
cases provided in article 96, the interested parties have the right to give
their opinion before the final decision is issued.
2. The investigating body decides case by case whether the
interested parties will give their opinion in writing or orally.
Article 94
1. In case the investigating body decides to request the interested
parties to express their opinion in writing, the latter are given at least 10
days notice to submit the written submission.
2. The notice shall include all the necessary information in order
to enable the interested parties to understand what is important for the taking
of the decision. The notice shall
include also the time and place where the relevant file may be consulted.
3. In their response the interested parties may express their
opinion with regard to the object of proceedings, may request additional
measures to be taken and may attach additional documents.
Article 95
1. In case the investigating body decides to request the parties to
express their opinion orally, it sets up a meeting with the parties giving at
least 8 days notice to them.
2. During the oral hearings all the legal and factual issues
relevant for the taking of the decision can be discussed.
3. Non-appearance of the
interested parties does not constitute grounds to postpone the hearing, except
when the submission of reasons by the interested parties is made before the
hearing starts.
4. Minutes are kept during the oral hearings. In the minutes are included all the claims
of the interested parties. Written
documents may be attached to the minutes during the hearing or later by the
interested parties.
Article 96
1. The interested parties may not express their opinion in the
following cases:
a) the taking of the
decisions is urgent;
b) it is clear that such a
measure would jeopardize the implementation of the decision.
2. The investigating body
may not allow the expression of the opinion by the interested parties in the
following cases:
a) the interested parties
have been given the opportunity to give their opinion on the issues concerning
the taking of the decision during the performance of the proceeding and based
on the existing evidence.
b) the information submitted
during the proceedings leads to the taking of a decision in favor of the
interested party.
After the interested parties
have been heard, additional measures may be taken, upon the request of the
interested parties or initiative of the investigating body.
In case the investigating body is not competent to take the final
decision, the latter prepares a report including the claims of the interested
parties, summarizes the history of the proceeding and prepares a proposal for
the final decision summarizing the legal and factual reasons which according to
its assessment justify the decision.
The proceeding is terminated
after taking a final decision or because of other facts provided by this
section.
In the final decision, the
administrative competent body decides regarding the issues raised during the
proceeding and not resolved in the course of the process.
Withdrawal of
Petition or Waiver
1. The interested parties, by means of a written declaration, may
withdraw from the proceedings or any of the formulated claims, as well as waive
their legal rights and interests, except in the cases where this is prohibited
by law.
2. The
withdrawal or waiver of the interested party does not affect the continuation
of the proceedings if the administration offices deems the proceeding in the
public interest.
Article 102
1. In case
the interested party because of its fault has been inactive for a period longer
than 6 months, the proceedings are deemed abandoned, except in the case when
the taking of a final decision is in the public interest.
2. The abandonment of the proceedings does not extinguish the right
claimed by the individual for implementation.
Article 103
1. The administrative proceeding terminates when the competent
administrative body for the taking of the final decision, discovers that the
object for which the proceeding started or the purpose of the decision has
become impossible.
2. The declaration of termination provided by the previous paragraph
shall always be reasoned and it may be appealed to the court.
1. The
proceeding terminates in case the fees and other duties are not paid within the
time limit which payment according to the law is a condition for the execution
of the procedural acts, with exceptions of the cases provided by the second
paragraph or in Article 11.
2. The interested parties may prevent the termination of the
procedures in case they pay double the duties and fees within 10 days from the
original time limit of payment.
CHAPTER I
For the purpose of this law
all decisions of the bodies of Public Administration Offices which creates
legal consequences for individual cases,
will be considered administrative acts.
1. The administrative acts are done in written form, unless another
form is provided by law or is imposed by the circumstances.
2. The acts issued by collegial
bodies shall be in written form only in the cases specifically provided by
law. In the other cases these acts are
registered in the minutes without which they have no legal effect.
Article 107
Purpose of the
Act
1. The administrative act shall in any case show its aim.
2. Without prejudice to any additional information to be given
depending by the case, the administrative act shall include:
a) the issuing authority as well
any delegation and sub-delegation of power concerning the issuance of act;
b) the identification of
parties to whom the act is intended;
c) the explanation of the
facts on the basis of which the act is issued, if relevant;
ç) the legal basis of the act
if required by law;
d) the explanation of the
meaning of the act;
dh) the date of entrance
into effect;
e) the signature of the
civil servant of the issuing body or of the president of the collegial body.
Article 108
The Reasoning
of the Act
1. Unless
the law provides otherwise with respect to the providing of reasons, there
shall be given indispensably the reasons for all the acts which totally or
partially:
a) deny, extinguish, limit
or infringe in any way a legitimate right or interest, set or increase
obligations or punishments;
b) constitute a decision with regard to the requests
for review or appeal;
c) constitute a decision given contrary to the claims of the interested
parties, or contrary to an official opinion, information, or proposal;
ç) constitute a deviation from the practice of settling similar cases;
d) causes the revocation,
abrogation, amendment, or suspension of an existing act.
2. There is no need of reasoned decision in cases of acts ratifying
decisions taken by boards, juries, or commissions established by the
administration offices, as well as orders given by people high in hierarchy,
with regard to internal issues, unless otherwise provided by law.
Article 109
1. The reasoning shall be clear and shall include the explanation of
the legal and factual basis of the act.
In case there is a reasoning in the previous opinions, information, or
proposals, this reasoning can be sufficient for their acceptance by the
decision-making body. In such case the
previous opinions, information, and proposals are made part of the final
decision.
2. The use in a reasoning of unclear, contradictory, or imprecise
data, nullifies the reasoning.
3. The reasoning of the
decision of a case can be used in an analogous case, on the condition that the
interested parties are not disadvantaged.
Article 110
1. When the act is expected
to be appealed, the reasoning of the act is done in writing and the interested
parties shall be notified within 10 days.
Communication is done via registered mail or hand delivery.
2. The decision is not
compromised if the interested parties do not use their right provided by the
paragraph one of this article.
SECTION II
Entrance INTO force of the Administrative acts
Article 111
In principle the
administrative acts become effective from the date of their approval, unless
the law or the act itself provides its retroactive or delayed entrance into
force.
Article 112
1. The administrative acts have retroactivity effect in the
following cases:
a) the act interprets an
existing act;
b) the act is issued in
implementation of a court decision which declares null an administrative act;
c) the law itself provides
the retroactive effect of the act.
2. With the exception of the cases provided in the previous
paragraph, the competent body may provide the retroactivity of the act in the
following cases:
a) the retroactive effect is
in favor of the interested parties and does not damage the rights of any third
party;
b) the act abrogates a
previous administrative act and all the sub-legal acts issued in the
implementation of the latter;
c) it is allowed by law.
The administrative acts have
a delayed effect:
a) if their entrance into
force is conditioned upon approval or countersignature;
b) if it is impossible for
the act to be effective because of any suspension or time limit;
c) the entrance into force of the act depends upon the occurrence of
certain conditions and circumstances.
Article 114
1. The publication of the administrative acts is mandatory only if
law requires it.
2. The failure to publish the act when the law requires it causes
the failure of entrance into force of the act.
3. In case it is mandatory for the acts to be published, these are
published in the Official Gazette within 30 days from approval.
Article 115
Invalidity of administrative
acts, on the understanding of within the scope of this as defined in this Code,
is presented in the following cases:
a)
administrative
acts absolutely invalid (acts issued in flagrant violation of the law);
b)
administrative
acts relatively invalid (acts issued in violation of the law).
Article 116
Absolutely
invalid Administrative Acts
Administrative acts will be called absolutely
invalid, on the understanding within the scope as defined in of this Code, in the following cases:
a)
when
the act has been issued by an unidentified administrative body;
b)
when
the acts were issued by an administrative body that is beyond its legal
competencies;
c)
when
the act has been issued in contradiction of the form and procedure required by
law.
Article 117
1. The absolutely invalid act has no legal consequence, without
regard to the fact whether it is declared null or not. It is considered never to have existed.
2. Any interested party may request to declare an act absolutely
invalid. An act may be declared
absolutely invalid by any administration body or the court at any time.
3. In case only a part of the act is absolutely invalid, the whole
act will be considered null upon the condition that the nullified part is so
substantial that the issuing body would not have issued it without the null
part.
Article 118
Relatively
invalid administrative acts
1.
The
administrative acts will be called relatively invalid, on the understating
within the scope as defined in of
this Code, when they have been issued in violation of the law, but nevertheless
are not absolutely invalid.
2.
An
relatively invalid administrative act can be appealed in administrative legal
ways
respectively
based on the provisions of this Code and the Code of Civil Procedure.
Article 119
Effects of the
relatively invalid administrative act
As
long as the relatively invalid administrative act has not become a subject of
the administrative or court appeal within the time limits provided by this
Code, or has not been revoked/abrogated by the competent administrative organ,
it produces the effects of a valid/regular administrative act.
Article 120
In case an act is valid but
is deemed to contain errors or obvious mistakes, the competent body on its own
initiative or upon request of the parties in process corrects the essential
mistakes as well as obvious irregularities without changing the content of the
act. There are no time limits with
regard to the corrections.
Section IV
Abrogation or revocation of the Administrative Acts
Article 121
Initiative for Abrogation or Revocation
1. The administrative acts are abrogated or revoked upon the
initiative of the competent body, or as a result of the request for review or
appeal submitted by the interested parties.
2.
Absolutely invalid administrative acts cannot be abrogated or revoked.
Article 122
1. The
administrative acts may not be revoked or abrogated in the following cases:
a) the law provides its
irrevocability/non-abrogation;
b) the act created legitimate rights;
c) the act grants to the administration offices rights and obligations
which can not be waived.
2.
Exceptionally, the acts provided by item b) of the first paragraph of
this article, may be revoked or
abrogated when:
a) they damage the interests of the parties to whom
is intended incomplete;
b) all the interested parties agree concerning the
revocation or abrogation of the act, if the act has created such rights which
can be waived.
Article 123
1. The null administrative acts may be revoked or abrogated only
because of their nullity and within the time limit defined for the submission
of judicial review.
2. If more than one time limit for submission of judicial review is
provided by law, the longer time limit applies.
Article 124
1. The right of revoking an act belongs to the issuing body, unless
otherwise provided by law. The higher
body in hierarchy is competent to abrogate an act.
2. The acts issued by delegation or
sub-delegation may be revoked by the delegating or sub-delegating body as well
as by the delegated or sub-delegated body as long as the delegation or
sub-delegation is valid.
3. The bodies higher in hierarchy may abrogate the administrative
act only in the cases allowed by law.
Article 125
The revoking or abrogating act shall have the same
legal form and is subject to the same procedures as the revoked or abrogated
act unless otherwise provided by law.
Article 126
Entrance into
Force of Revocation and Abrogation
1. The revocation and abrogation have effect only for the future,
except the cases provided in the second and third paragraphs of this article.
2. The revocation or abrogation is retroactive only in case these
are done because of the invalidity of the act which is nullified or revoked.
3. The body that issues the revocation or abrogation gives
retroactive effect to the revoking/abrogating act when all the interested
parties agree in writing for the revocation/abrogation of the act, on condition
that the act has created such rights that can be waived.
Article 127
Revocation/Abrogation
that Regenerates the Legal Effect of a Previous Act
Revocation or abrogation of
an act, which has revoked/abrogated a previous act, regenerates
the legal effect of the latter only in case the law or the last
revoking/abrogating act expressively provided such a thing.
Article 128
Amendments and
Substitution of Administrative Acts
Unless the law otherwise provides, the rules
pertaining to revocation or abrogation are applied also for the amendment and
replacement of the administrative acts.
Article 129
Correction of
Administrative Acts
1. The essential corrections concerning the will of the administrative
body, can be corrected at any time by the bodies which are entitled to revoke
or abrogate the act.
2. The corrections which have a retroactive effect can be made upon
the initiative of the administration offices or upon request of the interested
parties.
Correction is followed by
the same publicity done to the corrected act.
Section V
ImpLementation of AdministRative Acts
Article 130
Implementation
1. The administrative acts may be implemented only after entering
into force.
2. The administration offices may forcibly implement the obligations
provided in the administrative act, without going to the court, on the
condition that the act is implemented pursuant to law requirements.
Article 131
Acts that can
not be implemented
1. The following acts can not be implemented:
a) acts whose effect is
suspended;
b) acts which are appealed
with a suspending effect;
c) acts which enter into
force upon approval of an administrative body other than the issuing one.
2. The entrance into force of the acts may be suspended by the revoking administrative bodies, by the higher hierarchical abrogating body and by the court according to the rules provided in the Code of Civil Procedure (Chapter “For the Judgement of the Administrative Disputes”).
Article 132
Legality of
Implementation
1. The bodies of Public Administration Offices may not undertake any
action that in one way or another limits legitimate individual rights, without
having in hand an administrative act to legitimize authorize such acts.
Exemptions from this rule are made only in emergency cases.
2. If it is possible, the implementation of the administrative acts
is done by such means as will ensure the effectiveness of the implementation
that cause the minimal damage possible to the legitimate interests and rights
of private persons.
3. The interested parties may submit an appeal to the higher
administrative body or to the court in case the actions taken to implement this
act go beyond its limits.
4. An appeal to the court may be submitted against actions
undertaken during implementation, if the latter are illegal by themselves on
the condition that the actions do not derive from the illegality of the act in
implementation.
Article 133
Notice of
Execution
1. The decision to proceed with the implementation of the
administrative act is notified to the parties for whom the original act is
intended before its implementation starts.
2. The administrative body may provide notice for the implementation
while giving notice for the act and in this case the implementation starts
immediately.
Article 134
Prohibition of
Orders that Interrupt the Implementation
No administrative order or court decision can stop the implementation of administrative acts, despite legal provisions for the suspension of the acts’ power.
Section VI
Administrative Review and Appeal
Subsection I
General Principles
Article 135
General
Principles
1. Private persons are entitled to request the revocation,
abrogation or amendment of the administrative acts in accordance with the rules
provided by this Code.
2. The right provided in the previous paragraph may be exercised in
the following ways:
a)
by
means of an informal request to the civil servant/body responsible for the act;
b)
by
means of an appeal to the supervisor of the responsible civil servant/body, to
the collegial body if the civil servant responsible is its member, and to the
delegating or sub-delegating body.
Article 136
Informal Request
1.
No
respect of any time limit or procedural criteria is required concerning the
filing of informal requests.
2.
Informal
requests are considered as requests in the meaning of Article 66 of this
Code. In these cases the claimant is
entitled to get a reasoned answer within one month from the day the request was
filed.
3.
The
administrative body following the informal request informs the claimant of the
legal effects of the request, especially the distinction between the informal
request and administrative appeal.
4.
Informal
requests suspend neither the effects of the administrative act nor the
expiration of the time limits.
Article 137
Administrative appeal
1.
Any
interested party is entitled to submit an appeal against an administrative act
or against a denial for the issuance of the administrative act.
2.
The
administrative act, to which the appeal is addressed, reviews the legitimacy
and regularity of contested act.
3.
In
principle, the interested parties may address the court only after using the
administrative recourse.
Article 138
Effects of the administrative appeal
1.
The
administrative appeal suspends the implementation of the administrative act.
2.
The implementation of the administrative act is not suspended only in
the following cases:
a)
when
the administrative act contemplates the collection of taxes, duties and other
budgetary revenues;
b)
when
the administrative act concerns police measures;
c)
when
the suspension of the administrative act is forbidden by law;
d)
when
the immediate implementation is in the interest of the public order, public
health and other public interests;
3.
In
every case the claimant is entitled to be informed concerning the causes of non
suspension of the implementation of the act.
Article 139
The Subject to
whom the Appeal shall be Submitted
1.
The
administrative appeal may be submitted before:
a)
the
body which issued the appealed administrative act or denied the issuance of an
administrative act.
b)
the
superior body mentioned in point a of paragraph 1 of this Article.
2.
In
cases where the appeal is addressed to the superior body, the latter transfers
the respective file to the body which has issued/refused to issue the act
attached with its instruction concerning the resolution of this case.
Article 140
Time limit for
the Administrative Appeal
1.
Administrative
appeals shall be submitted within one month from the day:
a)
the
appellant was notified of the act or non issuance of it;
b)
the
act was published according to the provisions of this Code.
2.
In
case of omission of the administrate administration (non issuance of the act),
the procedure of appeal starts three months from the day the initial request
concerning the issuance of the administrative act is submitted.
Article 141
Time limit for
the Decision in an Appellate Procedure
1. The competent administrative body reviews
the administrative appeal and decides on it within a month from the date the
appeal is submitted.
2. When after the expiration of the time limit
provided in paragraph 1 of this article, a decision concerning the appeal is
not issued by the competent administrative body, the interested party acquires
the right to address to the court according to the paragraph 2 of article 328
of the Code of Civil Procedure.
Article 142
Procedure of
Appeal
1. If the body which issued or denied the
issuance of the appealed administrative act decides to accept the appeal, it also
takes the corresponding decision.
2. If the body mentioned in paragraph 1 of this
article does not accept the appeal, it is obliged to transfer the appeal to the
superior body, which decides concerning the appeal within two weeks.
Article 143
Formal
Conditions for the Development of the Appellate Procedure
1. The appeal shall be done in a written form.
2. The written appeal shall include the
following data:
a)
the
name and address of the appellant;
b)
the
administrative act issued or not issued , which is contested;
c)
the
causes of appeal;
d)
any
other document deemed important by the appellant
3.
The
body which will review the appeal is obliged to assist the appellants in
preparation of the necessary documentation for the appeal.
Article 144
Non Acceptance
of Appeal
The appeal against the issuance or non issuance of administrative acts may not be accepted by the competent bodies in the following cases:
a) the act which is the subject of appeal is not appealable by its nature;
b) when the appeal is barred by the statute of limitations;
c) when the appealed administrative act is deemed
valid prima facie by the body which reviews the appeal.
Article 145
In case the administrative body which reviews the appeal deems that the abrogation, revocation, modification of the appealed administrative act violates in any manner the rights and interests of a third person, the latter shall be notified to participate in reviewing the appeal and is also entitled to present his/her claims.
Article 146
The Decision
of the Body which Reviews the Appeal
The
administrative body which reviews the appeal decides:
a)
to
uphold the administrative act and to reject the appeal;
b)
the
abrogation/revocation of the administrative act and the acceptance of the
appeal;
c)
modification
of the administrative act, by partially accepting the appeal;
ç) the
obligation of the competent administrative body to issue the administrative
act, when the issuance of it was denied.
Real Acts
1. The legal principles shall be applied for the real acts,
especially the legitimacy principle, as well as for the administrative acts, if
their special nature shall not infringe these principles.
2. The real acts such as information, notices, coded signals, etc,
issued by a state body are to be deemed legal only in case they are precise,
objective and proportional.
Article 148
The administrative body is obligated to
eliminate/avoid the consequences deriving from an illegal real act.
CHAPTER III
ADMINISTRATIVE ACTS WITH A DISCRETIONAL
NATURE
Article 149
General Principles
In those cases when the
public administration exercises discretionary power, this power shall be
exercised in conformity with the Constitution and the spirit of the legislation
in force of the Republic of Albania.
Article 150
Judicial and Administrative Review of the Acts with a Discretionary
Nature
Upon the request of
interested parties, every administrative act with a discretionary nature may be
the object of a judicial or administrative review.
Administrative Contracts
Administrative
Contracts Definition
1. The administrative contract is an agreement
by means of which a legal relation of public law is created, modified or
terminated.
2. The
following are administrative contracts:
a) public
work undertakings;
b) public
work procurement;
c) public
services procurement;
ç) games of
chance licensing;
d)
continuing supplies contracts;
dh)
contracting for services provided by private subjects in cases of
natural disaster.
FINAL AND TRANSITORY PROVISIONS
Article 152
Within three months from the
entrance into power of this Code, the Council of Ministers and the bodies of
state administration shall respectively adopt the sub-legal acts and internal
rules concerning the implementation of this Code.
Article 153
All legal and sub-legal
provisions inconsistent with the provisions of this Code are abrogated.
Promulgated with the decree no. 2387, date 7.6.1999 of the President of
the Republic of Albania, Rexhep Meidani.