The Ombudsman considered a complaint in which the complainant criticised the City Municipality of Ljubljana (MOL) for not deciding on his applications in connection with entry into specific procedures for issuing permits for temporary excessive noise pollution and also his proposal for the renewal of a certain procedure. The accusations turned out to be well-founded. The Ombudsman identified the MOL's actions as an unjustified delay in the process, since it took more than two years and eight months to decide on the proposal for a renewal of the process, and it did not explain or justify its actions in any way. At the same time, the MOL did not decide on any of the complainant's applications for entry into the proceedings, thus violating the complainant's right to a legal remedy and legal protection, calling into question the realisation of the principle of the rule of law and potentially jeopardising the complainant's right to a healthy living environment. The MOL did not accept the Ombudsman's (re)proposal to invite persons whose legal interests could be affected to participate in the procedures for issuing such permits, in accordance with the stipulation of Article 44 of the ZUP, and consistently ensure that all those whose rights or legal benefits the issued permit could affect are involved in the procedure. As a result, the Ombudsman informed the Administrative Inspection of the findings.
* * *
Within the framework of the complaints outlined above, the complainant informed the Ombudsman of the numerous applications that he had addressed to the MOL in the period from the end of 2019 until August 2022 in connection with the individual procedures for issuing the above-mentioned permits, which the MOL issues to individual organisers of events on Pogačarjev trg in Ljubljana on the basis of Article 141 of the Environmental Protection Act (ZVO-2) and Article 6 of the Decree on the method of using sound devices emitting noise at public events and public meetings (Decree). Due to the close proximity of the premises in which he carries out his activity, the complainant may be affected in his rights due to numerous events and the resulting noise pollution, thus he tried to protect them by entering the individual administrative procedure as a side participant. The MOL did not decide on any of his applications[1], hence in accordance with the relevant stipulations of the ZUP[2], in January 2020 he addressed a proposal for the renewal of these procedures to it. The MOL decided on the complainant’s proposal no sooner than on 29/9/2022. The MOL rejected the complainant's proposal, and the petitioner appealed its decision. The second instance body then rejected the complainant's appeal on 21/11/2022.
The explanations received from the MOL largely confirmed the complainant's allegations, while the MOL's side lacked any self-critical assessment of its own conduct. Namely, the MOL did not make a decision on the complainant's applications and demands[3], despite his urgent requests, and the decision on the proposal to renew the procedure was made only after more than 2 years and 8 months. Also in general, the MOL does not inform the public or potentially affected individuals about initiated and ongoing procedures[4], as it is not, in its opinion, a special fact-finding procedure.[5] At the same time, according also to the MOL's assessment, such individuals only have the opportunity to submit an application for participation in an individual procedure once the procedure has started. The question of how individuals should effectively protect their right if they are not informed about the procedure and at the same time, due to the course of the event (the event had already taken place by the time of the decision), they are not recognised as having a legal interest, remained unanswered despite the appeals of the Ombudsman.
In the Ombudsman’s opinion, the fact that the MOL does not decide on applications for entry into an individual procedure, regardless of their possible prematurity or simply ignores the request a priori excludes the legal protection of the individual and thereby unjustifiably limits their right to a legal remedy. The only concrete decisions of the MOL were therefore to be found only in its first- and second-instance decisions regarding the complainant's proposal for the renewal of the procedure, about which the Ombudsman had to make a critical statement, even taking into account the Ombudsman’s own past findings[6].
Namely, the MOL based its own first-instance decision to reject the complainant's proposal on the assessment that a proposal for the renewal of the procedure was submitted (exclusively) on the basis of the first point of Article 260 of the ZUP[7], and at the same time, regarding the complainant's complaints about his previous application for entry into the procedure it did not make a decision, and it did not define in any way the other circumstances by which it justified its legal interest in entering the procedure. The Ombudsman could not logically follow the MOL’s decision, especially from the point of view of the fact that the complainant was not involved in the original procedure, but despite this, the MOL understood from the otherwise extensive proposal and based its decision solely on the renewal reason of new facts and evidence according to the first point of Article 260 of the ZUP. In accordance with established judicial practice, the latter is reserved only for the parties to the proceedings[8]. The MOL did not define how it reached the conclusion that the submitted proposal for the renewal of the procedure should be understood only from the point of view of the renewal reason according to the first point of Article 260 of the ZUP.
From the second-instance decisions of the mayor of the MOL, with which he rejected the complainant's appeal against the first-instance decisions, it should be understood that he assessed the issue of the right to participate in the proceedings, but did not approve the complainant's claims due to the lack of legal interest. According to the mayor of the MOL, this was not proven because he submitted the proposal for the renewal of the procedure after the disputed permits had already ceased to be effective. Since the complainant could not (successfully) improve his legal position in this way, according to the mayor's assessment, the legal interest was not satisfied, and he based the described position on the opinion of the Supreme Court of the Republic of Slovenia (Supreme Court), contained in its decision no. I Up 190/2009 of 11/6/2009[9]. After examination, the Ombudsman concluded that in 2011 the Constitutional Court of the Republic of Slovenia (USRS) had annulled the aforementioned decision and returned it to the Administrative Court of the Republic of Slovenia (Administrative Court) for a new decision. Said decision of the USRS no. U-I-181/09-15 Up-860/09-14 Up-222/10-14 of 10/11/2011[10], with which the USRS found the then Administrative Dispute Act (Official Gazette of the RS, nos. 105/06 and 62/10, ZUS-1) inconsistent with the Constitution of the Republic of Slovenia[11], also resulted in the adoption of the Act Amending the Administrative Dispute Act (ZUS-1B).
Applied to a concrete case in the context of the position of the USSR[12], it appears that the described interpretation of the MOL, based on the already established constitutional inadmissibility of the position of the Supreme Court, leads to the actual creation of an effective legal remedy at the administrative level, which is not acceptable from the point of view of the principle of the rule of law. From the point of view of preventing the occurrence of such a situation, even assuming the highest possible level of diligence on the part of potential side participants as well as the competent authority, the only consistent concern of the authority is that, in accordance with Article 44 of the ZUP, all whose rights or obligations may have been affected by the issuance of the decision participate[13].
The described approach of the MOL, i.e. that it does not invite potentially affected individuals to specific administrative procedures, contrary to Article 44 of the ZUP, nor does it inform the public about the initiated procedures[14]; that it does not decide on the applications of individuals to enter the procedure, that it decides on extraordinary legal remedies for an unreasonable amount of time, that it bases its second-level negative decisions on constitutionally inconsistent judicial practice, and above all, the fact that it bases these decisions on circumstances[15] for which it is itself responsible raised a well-founded suspicion of arbitrariness and abuse of power[16] on the part of the Ombudsman, which de facto nullifies the right of potentially affected individuals to effective legal protection. Last but not least, the (un)concealed perception of the authorities that individuals who are not themselves parties to the specific procedure, but could be affected by the decision of the authority, are just an unnecessary obstacle, only undermines the legitimacy of their own decisions. In the case of decisions with a limited period of effect, according to the Ombudsman's assessment, the real effectiveness of the envisaged legal remedies, both regular and extraordinary, can only be ensured by the timely inclusion of all potentially affected individuals in the proceedings, the implementation of an integrated fact-finding procedure, and decision-making within a reasonable time both on the fundamental matter and on legal remedies that may be filed.
Considering all the above and on the basis of Article 7 of the Human Rights Ombudsman Act (ZVarCP), the Ombudsman addressed a criticism and proposal to the MOL, to which the latter largely did not respond, mostly only repeating its previously known general, unconvincing, and (too) meagre views.[17] Consequentially, the Ombudsman considered the complaint justified. The Ombudsman concluded that the MOL unjustifiably delayed the proceedings, violated the complainant's right to a legal remedy, violated the principle of the rule of law, and threatened the complainant's right to a healthy living environment. In view of the identified and repeated irregularities, the Ombudsman once again informed the Administrative Inspection of the findings. 17.1-6/2022
[1] On 29/9/2022, only a meagre opinion was received that, according to its assessment, a potential side participant can, in accordance with Article 43 of the General Administrative Procedure Act (ZUP), register their participation only in already initiated procedures, but not in any future procedures. This leaves completely unanswered the question of how such an individual should be informed about an ongoing procedure at all, if the authority does not invite them to participate in it. The MOL responded only partially to interim applications, letters, and emergencies, e.g. in such a way that it decided only on part of the complainant's requests for access to information of a public nature, and it simply ignored their application to enter the procedure.
[2] On the basis of point 9 of Article 260 of the ZUP, a procedure that has ended with a decision against which there is no regular legal remedy in the administrative procedure (a decision that is final in the administrative procedure) is renewed if a person who should have participated in the procedure as a party or a side participant, but it is not a case from Paragraph 2 of Article 229, was not given the opportunity to participate in the proceedings.
[3] Except for the part of his requests for access to information of a public nature (IJS), on which it also decided with minor delays.
[4] Pursuant to Article 44 of the ZUP, the authority must at all times, ex officio, ensure that everyone whose rights or legal benefits could be affected by the decision participate in the procedure.
[5] In accordance with Article 145 of the ZUP, a special fact-finding procedure is carried out in all cases, except for the cases referred to in Article 144 of this Act. A special fact-finding procedure is carried out to establish facts and circumstances that are important to clarify the matter or to give the parties the opportunity to assert and protect their rights and legal benefits.
[6] https://www.varuh-rs.si/obravnavane-pobude/primer/varuh-v-ravnanju-mo-ljubljana-v-postopkih-izdaje-dovoljenja-za-zacasno-cezmerno-obremenitev-okolja-s/.
[7] Pursuant to the above-mentioned provision, a procedure that has ended with a decision against which there is no regular legal remedy in the administrative procedure (a final decision in the administrative procedure) is renewed if new facts are learned or new evidence is found or obtained, which could lead to a different decision by themselves or in relation to the evidence already taken and used, if these facts or evidence had been stated or used in the previous procedure.
[8] A person who was not a party to the procedure for issuing a decision can file a proposal for renewal of the procedure only for the reason of renewal according to point 9 of Article 260 of the ZUP, but not for other reasons defined in the provision of Article 260 of the ZUP. E.g. judgement of the Administrative Court no. II U 422/2011, accessible at: http://www.sodnapraksa.si/?q=id:2012032113056217&database[SOVS]=SOVS&database[IESP]=IESP&database[VDSS]=VDSS&database[UPRS]=UPRS&_submit=i%C5%A1%C4%8Di&page=0&id=2012032113056217.
See also, e.g., the judgement and decision of the Administrative Court no. I U 1358/2020-13 of 20/1/2022: http://www.sodnapraksa.si/?q=1358%202020&database[UPRS]=UPRS&_submit=i%C5%A1%C4%8Di&rowsPerPage=50&page=0&id=2015081111463235.
[9] https://www.sodnapraksa.si/?q=*:*&database[SOVS]=SOVS&database[IESP]=IESP&database[VDSS]=VDSS&database[UPRS]=UPRS&_submit=i%C5%A1%C4%8Di&id=63133.
[10] http://www.us-rs.si/documents/7f/72/u-i-181-09-up-860-09-up-222-102.pdf.
[11] The issue of the existence of an effective legal remedy was examined by the USRS in the above-mentioned constitutional appeals assessment procedure in relation to the procedures for issuing permits for public events, issued on the basis of the Public Assembly Act (ZJZ) and the possibility of participation in such procedures.
[12] In the aforementioned decision, the USRS stated, among other things, that “the limitation of judicial protection in the complainant's case only to the duration of the public event means that there is actually no subsequent judicial review of the legality of the final permission to hold a public event. An administrative dispute is formally admissible, but in fact a meritorious assessment of the legality of a final permit for holding a public event is never possible. It follows from Paragraph 1 of Article 157 of the Constitution that, in the administrative field, judicial review of the legality of definitive individual acts is ensured, with which state authorities, local community authorities, and holders of public authority decide on the rights or obligations and legal benefits of individuals and organisations. The regulation in the ZUS-1, which does not provide the plaintiffs with any claim, with which they would obtain a judicial assessment of the legality of the final administrative act, thus effectively deprives them of the right to judicial protection. Such a legal regulation means the hollowing out of the right to judicial protection from Paragraph 1 of Article 23 of the Constitution. When the regulation under review constitutes an interference with human rights to such an extent that it turns into an erosion of human rights, the assessment of the admissibility of the interference does not require a weighing of the ratio between the interference with human rights and a possible constitutionally permissible goal. No goal, no matter how permissible, can justify the deprivation of the right to judicial protection”.
[13] In point 9 of the explanation of the aforementioned decision, the USRS clearly explains, using the example of the prescribed deadlines according to the ZJZ, that adequate legal security cannot be ensured only by observing all the prescribed deadlines, while at the same time assuming absolute diligence on the part of those involved.
[14] E.g. on the basis of Paragraph 2 of Article 143 of the ZUP, of course assuming that it does not make a decision according to a summary procedure, which otherwise, taking into account the fact that public events with noise pollution are events which can clearly have a negative impact on the surroundings, does not appear as a suitable approach.
[15] Lengthiness of decision-making or indecision, which led to the end of validity of the permit.
[16] It is unequivocally in the socio-economic as well as political interest of the Municipality to hold as many events as possible, which in itself is not controversial, but this must never come at the expense of constitutionally guaranteed postulates.
[17] The only response of the MOL regarding the lengthiness of the procedures could be found in the explanation that, as a rule, decisions are issued within the prescribed deadlines, but in exceptional cases these can be exceeded, and that in the future it will ensure that decisions on extraordinary legal remedies are issued within the prescribed deadlines. Considering all the circumstances described, this explanation did not fill the Ombudsman with optimism that the MOL would actually follow through on its announcement.
