CASE OF MIROVNI INŠTITUT v. SLOVENIA
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Civil rights and obligations;Fair hearing;Public hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
5. The applicant institute is a private institute that carries out research in the field of social sciences. Its registered office is in Ljubljana. 6. 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 Slovenian tolars (SIT – approximately 3,130,000 euros (EUR)). The research projects were to be evaluated under the Rules on Quality Assessment and Funding of the Public Research Organisation Programme. The applicant institute submitted a tender for research in the field of social sciences. 7. 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. 8. The applicant institute applied to the Administrative Court of the Republic of Slovenia (“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. 9. On 19 October 2009 the applicant institute lodged another action before the Administrative Court on account of the Ministry’s failure to adopt a decision within the prescribed time-limit. 10. 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. The Ministry pointed out that it was presumed that no conflict of interests existed, even when evaluators worked in the same institution whose tenders they were evaluating and that this was a common European practice. It was further noted that evaluators had signed a declaration of confidentiality and an undertaking to withdraw in the event that a conflict of interests was found. 11. In order to reflect the fact that the Ministry had adopted the decision of 30 March 2010, the applicant institute supplemented its action of 19 October 2009, which it had originally lodged on account of the Ministry’s failure to adopt a decision (see paragraph 9 above), with a request that the Ministry’s decision be set aside. It further urged the Administrative Court to decide that it would be awarded funding. 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, without issuing a formal decision to that effect. It also complained of errors in the evaluation of the competing programmes, because not all of the criteria specified in the Rules on Quality Assessment and Funding of the Public Research Organisation Programme had been taken into account. It argued, inter alia, that the evaluation procedure had been unfair because some of the evaluators had been biased, as they had been evaluating research programmes which were competing with the very programmes in which they themselves participated. This provoked a distortion of the results of the procedure, as shown by the fact that only those research programmes in which the evaluators were leaders or members of research teams obtained financing. The applicant institute expressly requested a hearing at which witnesses could be heard with regard to the alleged procedural errors in the evaluation of the programmes. Additionally, it submitted a letter of 2 December 2003 which one of the witnesses, K., had sent to the Minister of Education, Science and Sport and several other addressees. In the letter K. notified them of problems he had detected in the tender proceedings in which he had participated as an evaluator. 12. After the parties had exchanged a number of written submissions, the Administrative Court, without holding a hearing, dismissed the action. In its decision of 2 February 2011 the court gave an extensive account of the proceedings before the Ministry and the submissions of both parties. The reasons for the decision were given on a single page. Invoking section 71(2) of the Administrative Dispute Act (Zakon o upravnem sporu – hereinafter “the ADA”, see paragraph 23 below), 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 stated that it agreed with the Ministry as to why no such conflict existed and cited section 71(2) of the ADA (see paragraph 23 below). As to the alleged errors in the evaluation of the competing programmes, the court merely disagreed with the applicant institute that not all criteria had been taken into account and again cited section 71(2) of the ADA. 13. No reasons were given for not holding a hearing. None of the evidence relied on by the applicant institute in their appeal (see paragraph 11 above) was acknowledged or referred to in the court’s reasoning. 14. 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 the facts of the case 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. 15. On 1 September 2011 the Supreme Court rejected the appeal as inadmissible. No reasons were given in its decision on the merits of the applicant institute’s complaints. 16. The applicant institute then lodged a constitutional complaint, arguing, among other things, that the decisions of the Ministry and the domestic court had been arbitrary and that the 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. 17. 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.