Institute of administrative silence refers to a situation where an administrative body fails to decide on a party’s request within the prescribed time limit. In such cases, the request is deemed either rejected (negative fiction) or granted (positive fiction). The most common causes of silence are systemic problems in the performance of the administrative procedure, as well as lack of knowledge, experience, or time. Positive fiction in administrative silence is less established due to risks it poses to legal certainty and the public interest. On the other hand, it encourages faster decision-making and improves the legal position of parties, who are thus not penalized due to the authority’s inaction. For this reasons, positive fiction is less appropriate, particularly in areas involving significant public interest (interference with public order, safety, or human rights), and where authorities exercise broad discretion. However, it may be appropriate in permit procedures, as also recognised in EU law. It is essential that the administrative authority inform the party of the possibility of positive fiction upon submission of the application; subsequently, a certificate would need to be issued confirming the authority’s silence, thereby giving the request the effect of a final decision. Silence may also occur during second-instance adjudication; in the case of positive fiction, all appeals would consequently be granted upon silence, which also entails certain risks. The same applies to adjudication in administrative disputes, where the Administrative Court would have to decide in the same manner as in the case of ordinary acts. In Slovenia, positive fiction already exists in certain sectoral laws, and comparative practice shows broader use. Given the precautionary nature of the legal system, it seems more sensible for positive fiction to remain a limited part of sectoral legislation rather than a general rule of administrative procedure.
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