The Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) dealt with a complaint from the residents of the Frankovci settlement, accusing the parent Municipality of Ormož (the Municipality) that it had not properly informed them beforehand about the planned relocation of the railway station to another, in the opinion of the complainants, inappropriate location. After the investigation procedure, the Ombudsman confirmed the complainants' allegations and recommended that the Municipality should investigate this issue with a citizens' assembly and that it should intervene through this mechanism in similar future situations. The Municipality refused to implement the Ombudsman's recommendation.

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The Ombudsman was contacted by the complainant on behalf of several residents of the Frankovci settlement in connection with the planned relocation of the railway station outside the settlement. They were expected to be informed about this at the beginning of 2022. In 2018, the Municipality supposedly held a meeting with the locals, the subject of which, according to the complainant, was only the planned closure of the level crossings, but not the relocation of the stop. It was otherwise possible to understand that the complainants are not opposed to the cancellation of the Frankovci 1 level crossing, but they do not agree with the relocation of the stop to, in their opinion, an inappropriate and also dangerous place. In particular, the complainants emphasised that they were not informed of the planned move in a timely and appropriate manner.

In its first response, the Municipality confirmed to the Ombudsman in part that the topic of the September 2018 meeting was only the abolition of the Frankovci 1 level crossing and the closure of the Frankovci 2 crossing with semi-locks, and that no minutes of the meeting were kept.[1] The Municipality did not specify the reasons for the lack of minutes. Regarding the Ombudsman's previous question about the convening of a citizens' assembly, she explained that it was not convened at the initiative of the mayor, as the convening of a citizens' assembly and the adoption of decisions by local residents in the subject situation, which is conditioned by law, according to the Municipality's assessment, would not make sense.[2]

It should be emphasised that the Ombudsman cannot make a decision on the suitability of an individual location, the expediency of relocating the station and closing the crossing, economic justification, and other technical aspects from the point of view of his powers, which, however, did not remove the stumbling block of the initiative in question. In the opinion of the Ombudsman, the fundamental objection of the complainants, while simultaneously opposing the relocation of the station, was related to inadequate communication of the Municipality's decision to relocate the railway station.

The Ombudsman, after examining all the submitted views while simultaneously taking into account all relevant legislation, did not find objective reasons as to why the mayor did not convene a citizens' assembly; as a result, on the basis of Article 7 of the Human Rights Ombudsman Act (ZVarCP), he addressed the aforementioned recommendation, the realisation of which the mayor refused. Despite the fact that the Municipality themselves assessed that there are diametrically opposed views of local residents on this issue (and therefore a citizens' assembly would be the most sensible approach), it concluded that the "majority opinion" expressed at the meeting on 10/9/2018 (approx. 40 locals are supposed to have attended the meeting) must be taken into account. He is convinced that moving the stop to the location of the Frankovci 2 crossing is the only rational decision.

Thus, the Ombudsman had to explain that the citizens' assembly, as one of the envisaged direct forms of participation of citizens in decision-making in an individual local community, in contrast to, e.g., a referendum does not necessarily have direct consequences on the implementation of, among other things, the legally prescribed obligations of an individual municipality.[3] As an implemented form of the constitutional right of public participation in the management of public affairs,[4] it represents an instrument of "soft" forms of control of authorities and their decisions, which directly affect the bearers of rights (citizens) and their life interests, and at the same time, the local community can ensure the highest possible degree of legitimacy of the decisions taken, thereby proactively and constructively contributing to the reduction of the democratic deficit at the local level and strengthening the transparency of its own operations as an integral aspect of the principle of good governance.

According to the Ombudsman's assessment, the implementation of a citizens' assembly in a transparent manner discloses the actual (majority) will of the citizens, which also has a strong representative effect in light of the legal requirements for convening and possible statutory requirements regarding the quorum. These characteristics cannot be attributed to the ad hoc meeting on which the Municipality predominantly based its decision.[5] Of course, the Ombudsman understands the perfectly legitimate intentions of the Municipality to lead and conclude the initiated procedures in a reasonable time, but the desire for their economy in itself should not be a limiting factor for the democratic decision-making process. Decisions adopted and ultimately implemented in this way only widen the gap between local residents and local authorities, contribute to future conflicts, encourage accusations of arbitrariness in decision-making, and reduce mutual trust, which is essential in the local environment.

Since it was not possible to discern from the mayor's answer valid reasons that would prevent the holding of a citizens' assembly regarding this issue, nor did  it provide any evidence of the readiness of the Municipality to intervene in the future in accordance with this foreseen option, the Ombudsman considered the complaint to be well-founded and found a violation the right of the public to participate in the management of public affairs while simultaneously violating the principle of good governance.17.2-7_2022

[1] This meeting is supposed to have been attended by approx. 40 local residents, and a "majority" decision to cancel the Frankovci 1 level crossing was reportedly adopted.

[2] It also explained in more detail the circumstances that dictated the move of the stop due to the cancellation of the Frankovci 1 level crossing. Namely, the stop would no longer have a function with the cancellation, as it would not be possible to ensure the safe passage of tracks from the south side. Alternative solutions are said to be in conflict with the Rulebook on Level Crossings. Keeping the stop at the existing location, in addition to other reasons, would not be possible.

[3] About which, according to the Ombudsman's understanding, the Municipality expressed apprehension in its reply to the Ombudsman. The Ombudsman thus explained to it that Article 45 of the Local Self-Government Act roughly outlines the above-mentioned form of public participation, leaving, among other things, the question of the extent to which decisions made at a citizens' assembly are binding on municipal authorities to the statute of each municipality. The Statute of the Municipality of Ormož (Statute) deals with the relevant matter in the provisions of Articles 76 to 81, with only the last paragraph of Article 81 defining in more detail the obligations of the competent municipal body regarding the results of a citizens' assembly. Thus, it stipulates that municipal bodies are obliged to consider the decisions, proposals, initiatives, positions, and opinions of a citizens' assembly and to take them into account when carrying out their tasks. If the competent municipal body considers that the proposals, initiatives, positions, opinions, and decisions of the citizens' assembly cannot be taken into account, it is obliged to present its opinion to the citizens in a suitable way and within a suitable period and justify it.

[4] According to Article 44 of the Constitution of the Republic of Slovenia, every citizen has the right to participate in the management of public affairs directly or through elected representatives, in accordance with the law.

[5]No minutes were kept about it, which means that it is not possible to objectively verify the actual representativeness of approx. 40 citizens who were supposed to have attended the meeting. It is also not possible to check whether the issue in question was comprehensively presented to the citizens present. The citizens' assembly would not have such shortcomings due to the very publicity of the process and the resulting necessary transparency of the results.