Violator: Slovenian Water Agency

Violation: Article 3 of the ZVarCP – Principle of good governance

Summary

The Human Rights Ombudsman of the Republic of Slovenia recognised a violation of the principle of good governance in the conduct of the Slovenian Water Agency (DRSV), as it responded sporadically and with uninformative content to letters from the initiator. The Ombudsman was also dissatisfied with the DRSV's communication with him as they did not provide clear answers to his repeated specific questions. The Ombudsman expects the DRSV to respond comprehensively and promptly to all correspondence in future, particularly to its own inquiries.

Details

The Ombudsman was contacted by a woman who told him about her attempts to gain access to her own property. Given the circumstances she described to the Ombudsman and the competent authorities, she had no option but to access the property via land classified as a public natural water resource, which must, by law, be accessible to everyone. Previous attempts to purchase part of this property have been unsuccessful. She claims that her neighbours have been bringing soil onto the property without permission from the DRSV, which manages the property. They have also laid various pipes and fenced off part of the property without permission. The petitioner has repeatedly contacted the DRSV regarding this matter, but the directorate has allegedly not responded to her correspondence.

She provided the Ombudsman with extensive documentation, including correspondence between herself and a DRSV employee, as well as correspondence with the DRSV itself. Initially, the correspondence between the petitioner and the DRSV employee responsible for the area in question revealed only the employee's lack of understanding of what the petitioner was asking. This was followed by a meeting between the petitioner and the employee, after which the petitioner wrote to him again, but received no response. The most significant correspondence was the DRSV's response to the petitioner in 2022, in which it announced that it would verify the legitimacy of the alleged encroachments on the land under her management, and that it would act in accordance with the law after verification.

While the explanations received from the DRSV largely confirmed the petitioner's allegations, the expected self-reflection could not be discerned from them. The Ombudsman had to contact the DRSV several times, particularly regarding the alleged passivity of the employee, due to the inconsistency of its responses. The explanations received were also contradictory in places. Thus, despite the employee's obvious lack of responses, the DRSV first made a general assessment that he had provided all the relevant information and acted in accordance with Article 17 of the Administrative Procedure Regulation (UUP). As the DRSV's initial response did not satisfactorily explain the circumstances or the investigative procedure by which it had arrived at this assessment, the Ombudsman contacted the DRSV again. In its second response, the DRSV confirmed that there had been no written communication between the employee and the initiator during the period in question. However, it allowed for the possibility that telephone or personal communication had taken place, despite no official record being made. The DRSV asked the Ombudsman to forward the relevant correspondence between the complainant and the DRSV employee to them for a final assessment. The Ombudsman was particularly surprised by this request, given that the DRSV had already commented on the appropriateness of the employee's conduct in a previous response in which it had deemed his conduct appropriate. The subsequent request for its own documentation suggested that the previous assessment had been made arbitrarily and without basis. The Ombudsman warned the DRSV that, before making such assessments in future, it should verify the relevant circumstances comprehensively and justify them. The Ombudsman forwarded the relevant documentation to the DRSV, but the DRSV responded vaguely with an unfounded assessment of the adequacy of the employee's response within the time limits set by the UUP.[1]

Even in the section concerning allegations of unauthorised interventions on the land, throughout its correspondence with the Ombudsman, the DRSV provided only general explanations about the maintenance of water land, which is carried out in accordance with the annual maintenance plan[2], and mentioned delays in the regular management and maintenance of other water and coastal land due to the concessionaires being fully occupied with dealing with the consequences of the 2023 floods. The Ombudsman acknowledged that a systematic approach is necessary for maintaining water areas given the scope of the tasks involved. However, in the Ombudsman's opinion, the initiator's efforts to prevent arbitrary interventions on land with public good status do not necessarily call for the immediate implementation of maintenance work outside the outlined plans and priorities. Rather, they call for the establishment of a situation that allows for the land's general use, which forms the basis of its public good status.[3] The subsequent explanations received from the DRSV in this regard were completely incomprehensible and it failed to respond in any concrete way to the Ombudsman's preliminary opinion. It concluded by stating that proceedings to determine the necessary route were ongoing between the DRSV and the initiator and that it was therefore communicating solely through the state attorney's office or the court.

Considering that the DRSV first accepted the assessment of its employee's conduct, then requested its own documentation to re-examine the allegations and subsequently provided a vague and clearly unfounded assessment of whether the UUP response deadlines had been met, despite repeated requests from the Ombudsman for a more specific explanation of the inconsistencies in its explanations, the Ombudsman concluded that the DRSV had violated the principle of good administration. The Ombudsman expects the DRSV to respond comprehensively and in a timely manner to any future correspondence, and above all, to respond comprehensively to his inquiries.

We considered the initiative to be justified. 17.0-4/2023

[1] Even if it could be concluded that the employee had already answered the subsequently received questions at a meeting or orally, he would still be expected to respond to later correspondence with reference to the previously provided explanations. No such conduct could be discerned from the correspondence known to the Ombudsman, and the DRSV did not submit any substantive evidence during the proceedings to refute these findings.

[2] In this part, the DRSV merely repeated explanations that it had already provided to the initiator in 2022.

[3] Despite the maintenance plan, the Ombudsman did not identify any obstacles to the DRSV first calling on the alleged perpetrators of unauthorised interventions on the land to restore it to its original state, and notifying the competent inspectorate in the event of such interventions being detected.