According to the assessment of the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman), by adopting an amendment to the ordinance that, among other things, regulates the extension of the operating hours of catering establishments, the Municipality of Novo Mesto violated Paragraph 3 of Article 153 of the Constitution of the Republic of Slovenia, according to which, implementing regulations and other general acts must be in accordance with the Constitution and laws. Namely, by referring to the Decree on Events, the Municipality of Novo Mesto arbitrarily allowed itself a significantly higher level of noise, which caterers were still allowed to cause in accordance with the Decree on Noise. The Ombudsman informed the Municipality of Novo Mesto of its opinion, but since the Municipality of Novo Mesto rejected it, the Ombudsman proposed that the Ministry of the Environment, Climate and Energy (MOPE) carry out an inspection. MOPE agreed with the Ombudsman's assessment and ordered the Municipality of Novo Mesto to repeal the illegal provision of the Ordinance, which the Municipality of Novo Mesto finally carried out – albeit with a significant delay.

The Ombudsman considered the complaint of a resident of the Municipality of Novo Mesto alleging that the Municipality of Novo Mesto had exceeded the powers granted to it under the Hospitality Act (ZGos) and the associated “Rules on the criteria for determining the operating hours of catering establishments and farms where catering activities are carried out” (the Rules). The complainant highlighted two aspects or complaints against the conduct of the Municipality of Novo Mesto. According to him, with the adoption of the “Ordinance on amendments and supplements to the Ordinance on the criteria for issuing permits for operation during extended operating hours to catering establishments and farms where catering activities are carried out in the area of ​​the City Municipality of Novo Mesto” (the Ordinance) in 2021, residents of the Municipality of Novo Mesto were deprived of the protection of their rights due to the lack of the possibility of effective legal protection. According to the complainant, the time from 10pm to midnight was determined by the amendment to the Ordinance as regular operating hours, which the caterer merely reports to the municipality. In his opinion, this is not an administrative procedure in which individuals with a demonstrated legal interest could participate, as was the case when operating hours in this interval could only be extended on the basis of a specific application and assessment of an individual case. At the same time, the Ministry of the Interior also criticised that the fact that the aforementioned Ordinance, in which it referred to the “Regulation on the method of using sound devices that cause noise at gatherings and events” (Regulation on Events), unacceptably lowered the level of noise protection, which is otherwise primarily prescribed by limit values ​​under the “Regulation on limit values ​​of noise indicators in the environment” (Regulation on Noise).

Regarding the allegation of denial of legal protection based on the amended Ordinance, the Ombudsman contacted the Ministry of the Economy, Tourism and Sports (MGTŠ) and also the Ministry of the Interior of the Republic of Slovenia with an inquiry. Based on the explanations received, the Ombudsman assessed that when interpreting the question of which type of administrative procedure, i.e. whether it would be most appropriate to conduct an abbreviated or special administrative procedure from the perspective of implementing all principles of administrative procedure and their mutual balancing, different interpretations are possible. In the Ombudsman's opinion, an unambiguous answer to this question, on which the actual scope of available legal remedies and their actual effectiveness also depend, can only be given by the Administrative Court of the Republic of Slovenia in the event of disagreement with an individual decision (consent), and with regard to the possible constitutionality of the Rules and the ZGos, only by the Constitutional Court of the Republic of Slovenia, the intervention of which is generally only considered if legal remedies against individual legal acts based on disputed general legal acts have been exhausted. The Ombudsman referred the complainant to the use of the available legal remedies in this regard.

Regarding the inappropriate reference of the municipal Ordinance to the Ordinance on Events, the Ombudsman, after examining the applicable regulation, was able to agree with the complainant's complaints. The Ombudsman addressed its opinion to the Ministry of the Interior of the Republic of Slovenia in this regard, expecting that the established unconstitutionality would be eliminated. Since the Ministry of the Interior of the Republic of Slovenia did not agree with the Ombudsman's opinion, the Ombudsman proposed to the competent Ministry of the Interior of the Republic of Slovenia to carry out supervision or take action, as provided for in the State Administration Act (ZDU-1) in relation to local community bodies. The Ministry of the Interior of the Republic of Slovenia followed the Ombudsman's proposal and called on the Ministry of the Interior of the Republic of Slovenia to repeal the illegal provision of the Ordinance within 30 days or at the next session of the municipal council and to bring it into line with applicable legislation and relevant regulations. On 6 February 2025, the Ministry of the Interior of the Republic of Slovenia finally (albeit with a significant delay) followed the call of the Ministry of the Interior by adopting the Ordinance on Amendments and Supplements to the “Ordinance on the criteria for issuing approvals for extended operating hours to catering establishments and farms providing catering services in the area of ​​the Municipality of Novo Mesto (Ordinance 2025), and published it on 12 February 2025 in the Dolenjska Uradni List No. 3/25, thereby harmonising the aforementioned Ordinance 2025 with regulations in the field of environmental protection from noise.

In this case, the Ombudsman considered the intervention successful and the complaint well-founded.17.0-1/2023