Information Note on the Court’s case-law 216
March 2018
Mirovni Inštitut v. Slovenia - 32303/13
Judgment 13.3.2018 [Section IV]
Article 6
Civil proceedings
Article 6-1
Civil rights and obligations
Public hearing
Oral hearing
Lack of reasons for failure to hold oral hearing in proceedings concerning public call for tenders: Article 6 applicable; violation
Facts – As a result of the Government’s call for tenders, the applicant, a private research institute, was not awarded funding and unsuccessfully challenged this decision before the domestic courts. Despite the applicant’s request, no hearing was held, without any reasons being given.
Law – Article 6 § 1
(a) Applicability – The Court had previously excluded the applicability of Article 6 to procedures concerning a call for tenders by the domestic authorities, pointing out that the latter enjoyed a discretionary power and that the substantive law of the State concerned did not confer to the applicants a right to be awarded the tender. However, in Regner v. the Czech Republic, it distinguished, inter alia, a situation where the authorities had a purely discretionary power to grant or refuse an advantage or privilege, with the law conferring on the person concerned the right to apply to the courts, which, where they found that the decision was unlawful, could set it aside. In such a case, Article 6 § 1 was applicable on condition that the advantage or privilege, once granted, gave rise to a civil right. Those principles were relevant to the instant case where the applicant institute clearly enjoyed a procedural right to the lawful and correct adjudication of the tenders. Should the tender have been awarded to the applicant institute, the latter would have been conferred a civil right. Therefore, the civil limb of Article 6 § 1 was applicable.
(b) Merits – It was necessary to establish whether there were any exceptional circumstances which justified dispensing with an oral hearing in the instant case. The applicant institute had expressly requested to hold a hearing and to hear a witness in respect of the facts relevant for the assessment of the impartiality of persons involved in the determination of the tender. Those matters were disputed between the parties and the proposed witness evidence was thus relevant for the outcome of the proceedings. However, the Administrative Court, which had acted as the first and the only judicial instance with full jurisdiction, had neither acknowledged the applicant institute’s request, nor given any reasons for not granting it. While the domestic law allowed to dispense with a hearing in a limited number of situations, in the absence of any explanation, it was difficult for the Court to ascertain whether the Administrative Court had simply neglected to deal with the applicant institute’s request or whether it had intended to dismiss it and, if so, for what reasons. It was also difficult to draw any conclusions as to the legal basis for not holding a hearing and how the relevant legal provision was interpreted against the factual background of the case. The proceedings in the instant case had therefore not been fair.
Conclusion: violation (unanimously).
Article 41: EUR 4,800 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See Regner v. the Czech Republic [GC], 35289/11, 19 September 2017, Information Note 210)
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This summary by the Registry does not bind the Court.
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