In this chapter, I will focus on a reprehensible practice by public administration bodies that I have observed for many years, but which has recently gained significant momentum, taking on an almost grotesque form. All of this is due to the relentless drive of these authorities—that is, people working in public administration—to handle matters with the least possible effort and time.
According to the Code of Administrative Procedure, there are two types of deficiencies in an application: formal deficiencies and all other deficiencies.
Formal deficiencies are serious deficiencies in an application that prevent the administrative procedure from being carried out, and failure to remedy them prevents the authority from initiating the procedure, resulting in the application being “left unexamined.” An example of such a deficiency is failing to provide the applicant’s address, which prevents the authority from knowing where to send correspondence regarding the case, or failing to provide the applicant’s personal information, which prevents the authority from knowing who the party to the proceedings is at all. Another formal deficiency is a foreign national’s failure to submit fingerprints during the residence legalization procedure, which prevents the authority from verifying the individual’s identity.
However, any other deficiencies or shortcomings in the application that may lead to a negative decision by the authority, but do not prevent the initiation and conduct of the procedure, are deficiencies that, if not remedied by the party, will result in the authority issuing a denial.
The problem is that the law does not define formal deficiencies very precisely. While it is true that administrative court case law has filled this gap and precisely explains what constitutes a formal deficiency in an application, the authorities do not pay much attention to this and, in practice, are creatively and constantly expanding the meaning of “formal deficiencies.” Why do they do this? Well, when an authority deems a party’s failure to provide certain information, a document, or to perform a specific action as a formal deficiency in an application, it means that after setting a very short deadline for the party—usually 7 days — to supplement the application, the authority may “leave the party’s application unexamined.” Such a decision to leave the application unexamined is neither a decision nor a ruling. The authority therefore does not even have to analyze the evidence in the case or provide a written justification for its decision. It is sufficient for the authority to issue a written notice in which it states, using a standard form, that due to the party’s failure to remedy a specific deficiency, it “leaves the party’s application unconsidered.” When the party receives such a notice, it does not even know what to do next. Of course, in this notice, the authority does not inform the party of the further legal steps available to them in this situation. This is therefore a very convenient and comfortable solution for the authority, which quickly disposes of the case without having to examine it.
I recently witnessed a situation in which an administrative authority left an application for a work permit unprocessed because… the applicant had failed to include a phone number in the application. In my view, this is an example of the pathological abuse of the “formal deficiencies” doctrine by public administrative authorities. Most so-called “formal deficiencies” are not actually deficiencies at all. They are mere omissions that do not in any way prevent the authority from conducting the proceedings. Furthermore, if such omissions are identified, the authority is obligated to cooperate with the party to remedy them so that the application submitted by the party can be approved. This obligation on the part of the authority stems directly from the provisions of the Code of Administrative Procedure, including Articles 79a, 10, 9, and 8 of the Code of Administrative Procedure. The Code imposes on the authority the obligation to look after the party’s interests, assist the party, build the party’s trust in the authorities, and point out the deficiencies that the party should remedy so that the application is processed in accordance with the party’s request. It can be said that, in administrative proceedings, the authority acts as a quasi-representative of the party.
Meanwhile, the practice described above—in which authorities are increasingly quick to label everything as a procedural deficiency simply to dispose of a case as quickly as possible and with the least amount of effort, and thereby prevent the party from resolving any administrative matter, constitutes an unacceptable violation of the aforementioned provisions. This essentially amounts to inaction on the part of these authorities—against which the party may, however, file a complaint!
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