Communicated on 30 May 2016
FOURTH SECTION
Application no. 32303/13
MIROVNI INŠTITUT against Slovenia
lodged on 13 May 2013
STATEMENT OF FACTS
The applicant, Mirovni Inštitut, is a Slovenian institute with a head office in Ljubljana. It is represented before the Court by Ms N. Šorli and Mr T. Kovačič, lawyers practising in Ljubljana.
A. The circumstances of the case
The facts of the case, as submitted by the applicant institute, may be summarised as follows.
The applicant is a private institute that carries out research in the field of social sciences.
In June 2003, the Ministry of Education, Science and Sport (hereinafter “the Ministry”) made two calls for tenders for the purpose of making awards for scientific research projects; one call was directed at private entities and the other at public research organisations. The Ministry announced that in 2004 it would finance 100,000 research hours, which were estimated to amount to 750,000,000 tolars (SIT). The applicant institute participated in the tendering procedure for research in the field of social sciences.
Subsequently, the Ministry seems to have joined the proceedings for the two tenders, but no formal decision regarding the joinder appears to have been made. On 17 February 2004 the Ministry decided that the applicant institute would not be awarded any funding.
The applicant institute initiated judicial review proceedings before the Administrative Court seeking the setting aside of the Ministry’s decision. The action was granted by a decision of 4 April 2007 and the case was remitted to the Ministry for reconsideration.
On 30 March 2010 the Ministry again decided that the applicant institute would not be awarded any funding. It explained that the institute’s research programme had been ranked fifth among the research programmes in the field of political sciences and that only four programmes in that group would receive funding. Regarding the alleged conflict of interests, the Ministry pointed out that it was presumed that no conflict of interests exists when evaluators work with the same institution which they also evaluate and that this was a common European practice. In addition to this, evaluators sign a declaration of confidential treatment.
The applicant institute again initiated judicial review proceedings before the Administrative Court, seeking the setting aside of the Ministry’s decision and urging the Administrative Court to decide that it would be awarded funding. Essentially, it complained that the Ministry had joined the proceedings that had initially been intended for consideration of tenders from private research organisations to the proceedings for consideration of tenders from public research organisations. It also complained of errors in the evaluation of the competing programmes. Among those complaints, it argued that the evaluation procedure had been unfair because some of the evaluators had been biased, as they had been evaluating the research programmes which were competing with the very programmes in which they themselves participated. It expressly requested a hearing at which witnesses could be heard with regard to the alleged procedural errors in the evaluation of the programmes.
Without holding a hearing, the Administrative Court dismissed the action by a decision of 2 February 2011, in which it gave an extensive account of the proceedings before the Ministry and the submissions of both parties. The reasons for the decision, however, were given on a single page. Invoking section 71 of the Administrative Dispute Act, the Administrative Court chiefly referred to the submissions of the Ministry. It considered, among other things, that the Ministry had not acted unlawfully in joining the proceedings. It accepted the Ministry’s submission that its decision had been dictated by the nature of the research and infrastructural programmes, taking into account the guidelines of the National Research and Development Programme. The court also pointed out that the procedural rules for the evaluation of research programmes adopted by the National Scientific and Research Council clearly defined the stages of the evaluation procedure, the participants in it and their tasks. Regarding the alleged conflict of interests, the court agreed with the Ministry and endorsed the reasons it had given as to why no such conflict existed. No reasons for not holding a hearing were given.
On 31 March 2011 the applicant institute lodged an appeal on points of law. It complained that the Administrative Court had not held a hearing even though facts had been contested and the applicant institute had explicitly requested a hearing at which witnesses could be heard. It also argued that the Administrative Court had failed to address its allegations that errors had been made in the evaluation procedure, and complained that insufficient reasoning had been given for the decision. On 1 September 2011 the Supreme Court rejected the appeal as inadmissible.
The applicant institute then lodged a constitutional complaint, arguing that the decisions of the Ministry and the domestic court had been arbitrary and that the domestic courts had failed to address its allegations that errors had been made in the evaluation procedure. It reiterated that the witnesses it had proposed had not been heard and that no hearing had been held. The applicant institute also argued that the proceedings in respect of the tender for a public service concession and the proceedings in respect of the tender for the financing of programmes run by public research organisations should not have been joined.
On 19 November 2012 the Constitutional Court dismissed the applicant institute’s complaint, finding that it did not concern an important constitutional question or entail a violation of human rights with serious consequences for the applicant institute.
B. Provisions on procedure before the Administrative Court
Under section 59 of the Administrative Dispute Act (“the ADA”) the Administrative Court may decide without holding a hearing in the following circumstances: (i) if the facts on which an administrative decision is to be based are uncontested; (ii) if, on the basis of the documents in the case file, it is apparent that it is necessary to grant the plaintiff’s request; (iii) if the facts are contested by the parties, but new facts and evidence submitted by the parties are inadmissible or not relevant for the decision; or (iv) if the court has already decided on a dispute between the same parties on the same factual and legal basis. Regardless of the exceptions enumerated above, a hearing should be held if a person who should have participated in the proceedings was not enabled to do so; or if in the administrative proceedings a party was not able to make a statement on the facts relevant for the decision.
Under section 54 of the ADA, the parties to the proceedings must be informed of all the dates and times of hearings at which evidence will be heard. The parties should also be allowed to attend the hearings and examine the witnesses and experts. Under section 53 of the ADA the president of the panel can take evidence ex parte only if to do so will assist the court in the subsequent proceedings.
Section 71 of the ADA allows the Administrative Court not to give reasons for parts of decisions. If it agrees with the reasoning of the contested administrative decision, it may refer to that instead.
COMPLAINT
The applicant institute complains under Article 6 § 1 of the Convention of the absence of reasoning, in that the Administrative Court did not consider the merits of its arguments, but merely repeated the submissions of the Ministry. It also complains about the lack of an oral hearing, in that despite its request that a hearing be held at which disputed facts could be established, the Administrative Court decided on the complaint without holding a hearing or giving reasons for not doing so.
QUESTIONS TO THE PARTIES
1. Did the applicant institute have a fair hearing in the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention?
2. Was the Administrative Court required to provide its own reasons for its decision, rather than referring to the reasoning of the Ministry, in particular as regards the applicant institute’s complaint that some of the evaluators had been biased in favour of the programmes submitted by their own institutions?
3. Having regard to the requirements of Article 6 § 1 of the Convention, was an oral hearing before the domestic courts necessary in the present case, bearing in mind that the applicant institute had requested an oral hearing and explained the reasons for its request, and also that no oral hearing had been held at any prior stage of the proceedings?
4. Was the Administrative Court required to provide reasons for its decision not to hold an oral hearing?
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