ECHR ruling of March 13, 2018 in the case of the Institute for Peace (Mirovni Institut) v. Slovenia (application No. 32303/13).
In 2013, the applicant, a private research institute, was assisted in the preparation of application. Subsequently, the application was communicated to Slovenia.
In the case, the complaint of a private research institute to an unmotivated refusal of the court to hold an oral hearing on the fact that it did not receive funding for the order announced by the state to place an order (tender) was successfully considered. The case has violated the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Mirovni Inštitut, inštitut za sodobne družbene in politične študije (Slovene) - Institute of Modern Social and Political Studies.
THE CIRCUMSTANCES OF THE CASE
According to the results of the tender announced by the state for placing an order (tender), the applicant organization, a private research institute, did not receive funding and unsuccessfully appealed to the domestic courts the results of the bidding. Despite the request of the applicant organization, there were no oral hearings of the case without giving reasons.
QUESTIONS OF RIGHT
(a) Regarding the applicability of Article 6 of the Convention. Earlier, the European Court ruled out the application of Article 6 of the Convention to the procedures related to the placement of orders (tenders) by the domestic authorities, noting that the public authorities enjoyed discretion in this regard and that the substantive law of the relevant state did not give the applicant organization the right to receive state orders ( win the tender). However, in the Regner v. Czech Republic case (Regner v. Czech Republic), the European Court considered, inter alia, a situation where the authorities had an exclusive margin of appreciation for granting a privilege or privilege or refusing to grant it, while the legislation gave the person concerned the right to appeal to the court, which, if he recognized the decision of the authorities as unlawful, could have annulled the said decision. In such a case, Article 6 § 1 of the Convention was applicable in the case, provided that the privilege or privileges, if they were already granted, granted the person civil rights. These principles were relevant to the present case, in which the applicant organization clearly enjoyed the procedural right to the lawful and correct distribution of the state order. If the tender were provided to the applicant organization, it would have enjoyed civil law. Therefore, the civil law aspect of Article 6 § 1 of the Convention applies in the present case.
(b) Regarding compliance with Article 6 § 1 of the Convention. In the present case, it was necessary to establish whether there were any exceptional circumstances that would justify not conducting oral court hearings. The applicant organization explicitly expressed its demand to hold an oral hearing and to hear witnesses regarding the facts regarding the assessment of the impartiality of the persons participating in the distribution of the state order (tender). These issues were the subject of a dispute between the parties, and thus the evidence to be considered was relevant to the outcome of the case. However, the administrative court, which acted as the court of first and only instance, did not satisfy the petition of the applicant organization and did not provide grounds for such a refusal. Although domestic law allowed to refuse to hold an oral hearing in a limited number of cases, in the absence of any explanation, it was difficult for the Court to establish whether the administrative court was negligent in considering the request of the applicant organization or whether it intended to reject the request. what reason. In addition, it was difficult to draw any conclusions regarding the legal basis for not conducting an oral hearing, as well as how the relevant legal provisions were interpreted on the basis of the actual circumstances of the case. Accordingly, the proceedings in the present case were not fair.
In the case of a violation of the requirements of Article 6 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicant EUR 4,800 in respect of non-pecuniary damage, the claim for pecuniary damage was rejected.