In the framework of an extensive review of the issue of environmental noise with an emphasis on the lack of regulation of low-frequency noise (LF noise) and the unconstitutionality of the Regulation on Limit Values ​​of Noise Indicators in the Environment (Regulation) in addition to the evident violation of the rule of law, which should be attributed to the Government of the Republic of Slovenia (Government) and the Ministry of the Environment, Climate and Energy (MOPE), the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) also found extremely poor cooperation of the departments of this branch of government. Of particular concern is the underestimation of the Constitutional Court and the absence of MOPE's ability to self-reflect, which is completely unreasonable and unacceptable.

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The Ombudsman's consideration of the complaint of an individual who contacted him regarding unacceptable noise emissions caused by a neighbour's heat pump inevitably touched upon the issue of LF noise at a certain point, in particular the lack of regulation in this area. Since the consideration of the complaint, given the circumstances of the time, also coincided with the assessment of the Constitutional Court of the Republic of Slovenia (Constitutional Court) on the constitutional compliance of the aforementioned Regulation, the Ombudsman extended the investigation to a number of authorities in order to comprehensively investigate the actual situation. Among other things, he maintained correspondence with the former Inspectorate of the Republic of Slovenia for the Environment and Spatial Planning (IRSOP), the then Ministry of the Environment and Spatial Planning (MOP), whose tasks were taken over by MOPE in the relevant part during the duration of the procedure, and later also with the Ministry of Health (MZ), with the then Ministry of Economic Development and Technology (MGRT),[1] and with the Ministry of Infrastructure (MZI), and the Ombudsman was also in contact with the National Institute of Public Health (NIJZ).

The synthesis of the responses received already in the intermediate phase of the process indicated a general consensus on the need for a thorough establishment of normative frameworks for LF noise regulation and the fundamental competence of MOPE to regulate this issue.[2] What stood out were the reactions of the MZ, which from the very beginning offered assistance to the responsible MOPE department in dealing with this issue. Unfortunately, MOPE's responses came as an inappropriate surprise. Namely, it was noticeable (initially) that the responsibility for regulating this area was lost and that it was diverted to the supposed powers of other authorities (e.g. the Market Inspectorate, municipalities, MGRT and MZI, etc.), the refusal to assume a leading role in regulating this issue in view of its evident own competence, the Ombudsman also characterised one of the last responses from MOPE as misleading, given the level of ignorance expressed.[3]

At the end of the ascertainment procedure, the Ombudsman accepted the above criticism, and called on the responsible MOPE and the Government to take immediate action. He could not be satisfied with the response he received.[4] Indeed, both MOPE and the Government tried to relativise the importance of the aforementioned constitutional decision in the sense that the Constitutional Court did not assess the content of the Regulation, that it was inconsistent with the Constitution "only" due to procedural errors in the phase of its adoption, and that the Regulation itself is still valid despite the decision. The Ombudsman explained to them that the procedural aspect of acceptance and the substantive aspect of regulating a certain issue are two sides of the same coin, which are inextricably linked. The procedural constitutional and legal compliance of a regulation, which by its nature can only be preserved in the process of the creation of the regulation, namely provides an appropriate preventive mechanism of control by the general public over the holder of power, so that even before the adoption of the regulation, the substantive suitability and constitutional compliance of the regulation itself is ensured to the greatest extent possible. However, if realistically effective cooperation is not ensured in the adoption process, this kind of behaviour of the decision-maker takes away the legitimacy of such a regulation in advance and quite rightly implies the accusation of arbitrariness of the authorities in its adoption. The importance of procedural violations, as opposed to substantive ones, cannot therefore be attributed a greater or lesser value, as MOPE and the Government wanted to portray completely inappropriately. The Ombudsman characterised their response as completely unacceptable and incompatible with the principle of the rule of law and the principle of separation of powers within the framework of the system of checks and balances, which is the foundation of every developed democracy.

In principle, the Ombudsman was able to welcome the announced measures[5] and the announcement of the adoption of the new regulation this year. The presented measures represent the first serious approach to this issue. However, it should not be forgotten that the Ombudsman has been warning about the lack of regulation in this area for many years. Due to the above and also the fact that neither MOPE nor the Government explained in any way in their answers the interim delay in following the decision since July 2022, when the decision was adopted, the Ombudsman, regardless of the optimistic prediction of both addressees that this issue will be resolved in the way they outlined and finally regulated, he remains sceptical. Only the further actions of MOPE and the Government as a whole, if they move towards preparing a constitutional regulation in a reasonable time, can be an indicator of real and not merely apparent commitment to the announced goals. The Ombudsman will therefore closely monitor their further activities, namely with the goal that the new regulation, which will appropriately address all controversial areas of noise regulation in the environment, including LF noise, is adopted as soon as possible. We considered the complaint justified. 17.0-5/2021

[1] Which was succeeded by the Ministry of Economy, Tourism and Sport (MGTŠ).

[2] Almost all the aforementioned authorities agreed on this, except for MOPE.

[3] In one of the responses to MOPE, the MZ specifically addressed the request to include in the earliest phase of the renewal of the normative regulation representatives of the MZ, experts from the NIJZ and the National Laboratory for Health, Environment and Food (NLZOH), who perform public service in accordance with the Health Activity Act from the field of public health. Despite the clarity of the letter, MOPE did not even consider that it was obliged to respond to it, let alone react more concretely.

[4] He had to urge a government response twice, but he received a practically identical response from MOPE.

[5] They announced that MOPE had carried out an analysis of the methodology for measuring the noise from wind farms (and issued a report on it), in which the feasibility of the Danish methodology for measuring the sound power of wind farms, the determination of the sound pressure level on the facade of residential buildings, and the determination of low-frequency noise inside residential buildings was to be verified. The methodology should be suitable for use in the Slovenian environment and will be included in the announced amendment to the Regulation. MOPE plans to carry out the task for the rest of this year, which should deal with the area of ​​audible and low-frequency noise of heat pumps with the aim of developing a methodology for measuring the noise of heat pumps and a methodology for calculating the permissible sound power for the selected location. Then, MOPE should prepare guidelines for their installation and measures to reduce the noise of their operation. The developed methodologies should also be included in the announced amendment to the Regulation. In the concluding part of its answer, MOPE also announced that it will propose the project "Management of Low-Frequency Noise in Promoting the Use of Renewable Energy Sources" as part of the Public Call for Research Projects within the Target Research Programme (CRP 2024). The aim of this proposal is to identify the primary sources of infrasound caused by wind farms, to relate them to the acoustic resonances of building structures, and to develop a methodology for managing infrasound in the protected areas of these buildings. With this interdisciplinary research and application project, MOPE aims to upgrade existing methodologies in the field of noise measurement methods, and noise mapping, recognition, and classification of noise events and reducing their impact on people. About the performed analysis: https://www.gov.si/assets/ministrstva/MOPE/Okolje/Hrup/Analiza-metodologije-merjenja-hrupa-vetrnih-elektrarn.pdf.