In connection with the consideration of a complaint regarding the management of public tender procedures for the selection of cultural projects, the Human Rights Ombudsman found that the Ministry of Culture does not allow applicants to actively participate in these procedures. As a result, there were violations of several provisions of the General Administrative Procedure Act and the Exercising the Public Interest in Culture Act, as well as a violation of the applicants' right to legal protection and a threat to the public interest in the field of culture. The Ministry of Culture is already preparing changes.

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In March 2024, the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) received a complaint alleging violations of rights in the procedures for applying for public tenders for the co-financing of cultural projects. The key problem in the procedures for allocating public funds based on public appeals and public tenders for the selection of cultural programmes and cultural projects is said to be the fact that the expert commissions, whose members are appointed by the Minister of Culture, evaluate the submitted projects and programmes only on the basis of the tender documentation, and the competent minister issues a decision on the basis of the said evaluation or the report of the commission, without the applicants being previously informed of the facts and circumstances relevant to the issuance of the decision, and thus they do not have the opportunity to express themselves on the above.

In this particular case, we addressed several inquiries to the Ministry of Culture (MK).

According to the explanation of the MK, the procedure is supposed to be consistent with the Exercising the Public Interest in Culture Act (ZUIJK), Article 100 of which stipulates that, if the issues of public tender and public call procedures are not otherwise regulated by this law, the provisions of the law governing the general administrative procedure and the Rules on the implementation of public calls and public tenders for the selection of cultural programmes and cultural projects (Regulations) adopted on the basis of the ZUIJK, with amendments adopted in 2016, however, no longer provides for prior written notification of the parties about the facts and circumstances relevant to the issuance of the decision, nor about the proposal of the expert commission.

The Ombudsman cannot agree with the aforementioned reasoning of the MK, nor does he accept the reasons that should justify the aforementioned amendment to the Rules, mainly due to the elimination of administrative obstacles and the shortening of the entire procedure. It is only an opportunity to participate in the procedure, which the individual applicant either takes advantage of or not. Article 1 of the Rulebook, amended in 2016 (derived from Article 106 of the ZUJIK), determines the content of the Rulebook, which, among other things, regulates the way the ministry responsible for culture works in the selection procedures of cultural programmes and cultural projects that are financed on the basis of a public call or a public tender. In a specific case, the Rules determine the conduct of the ministry in the selection and financing procedures of public projects. The MK explained that the amended Rules no longer stipulate the right of applicants to their so-called prior familiarisation with the actual situation. However, in the Ombudsman's opinion, it is necessary to take into account that byelaws cannot be amended or legal rights limited.

In the selection and financing of cultural projects, in the Ombudsman's opinion, it is also not possible to establish that it is a non-administrative matter, as claimed by the MK, and that therefore the provisions of the General Administrative Procedure Act (GAP) apply sensibly. According to Paragraph 2 of Article 2 of the ZUP, it is considered an administrative matter when it is determined by regulation that the authority that conducts administrative proceedings on a certain subject shall decide in administrative proceedings or issue an administrative decision. In light of the above, the wording of Article 100 of the ZUJIK is also questionable, which states that, if the issues of public tender and public invitation procedures are not otherwise regulated by this law, the provisions of the law governing the general administrative procedure shall apply mutatis mutandis to them.

Article 4 of the ZUP stipulates that this law is also applicable mutatis mutandis in other public law cases that do not have the character of an administrative matter according to Article 2 of the ZUP, when these areas are not regulated by a special law. It is essential in these matters (1) that the rights, obligations and legal benefits of the parties are also decided unilaterally and authoritatively, (1) that an entity that is not an authority, but has the authority to decide on the rights, obligations and legal benefits as an authority, is competent to decide in such a case according to an express legal provision or depending on the content of the case, and (3) that no special procedure is prescribed for decision-making in such circumstances.

The Ombudsman's position is therefore that applicants should have the opportunity to speak about the facts and circumstances in the procedures for issuing a decision on the selection of cultural projects. We explain why this is important below.

In matters of cultural project selection, according to the Ombudsman's assessment, it is an administrative matter, which has all the characteristics from Article 2 of the ZUP, as well as Articles 113 and 120 of the ZUIJK in, which stipulate that the application for financing a cultural programme or project is decided by the minister with a decision, on the basis of which a contract on the financing of a public cultural programme, and the project is concluded. It is impossible to overlook the fact that in these procedures, decisions are made on projects of public interest and that, according to the cited article of the ZUP, it is an administrative matter even if, in order to protect the public interest, this follows from the nature of things. In the considered case of the selection of cultural projects and programmes, it is an administrative area that, due to its particularity, needs a partial deviation from the rules of the general administrative procedure. For example, the expert commission prepares a report on the assessment and evaluation of applications, on the basis of which the minister of culture decides on each application and the share of co-financing or the refusal of co-financing of a cultural project or programme. In those issues that are not regulated by the special administrative procedure in individual administrative areas, the rules of the ZUP are subordinately applied according to Article 3 of the ZUP. However, subordinate use does not mean the same as meaningful use of ZUP. The fundamental principles and individual other rules of the general administrative procedure, such as applications, exclusion of officials, legal aid, preliminary questions, service, discovery procedure, evidence, appeal procedure, etc., are of such a nature that they can be used in solving concrete administrative matters in all administrative areas. It follows from Article 120 of the ZUJIK that the expert commission actually takes over the decision-making on the selection of the cultural project and does not have a consultative role, as could be inferred from Article 20 of the ZUJIK. The provision of Article 120 of the ZUJIK is more special compared to Article 20 of the same law. Although it follows from Paragraph 1 of Article 120 of the ZUIJIK that the minister can reject the proposal of the expert committee, he cannot take a different decision than the one proposed in the proposal of the expert committee. The minister can return the proposal regarding an individual application to the expert committee for reassessment only once. Expert commissions are thus not only in the role of evaluators of cultural projects and not only consultative bodies for individual fields or aspects of culture.

The Ombudsman further considers that it is not possible to agree with the opinion of the MK that public tenders are a special type of abbreviated assessment procedure. In their application, the customer provides in the form of documentary evidence all the information for the substantive assessment, which is carried out by the expert assessment of the commission. In the Ombudsman's opinion, checking and evaluating the fulfilment of the tender criteria is a special act of the procedure, whereby an exclusively objective evaluation is not always possible. Since it is often a question of the appropriateness of professional judgment, it would be necessary for the client to be informed of the reasons that will influence the decision before the decision is issued, and to be given the opportunity to participate; it also demands that the proposed decisions of the commission are very precisely explained.

The necessity to give the client the opportunity to express his opinion on everything that the minister of culture will base his decision on is all the more important because expert commissions are independent and the minister cannot influence their expertise and substantive work, and the (administrative) court does not judge the legitimacy of the decision (of the minister or expert commission), but only the legality of the allocation of funds with regard to material and procedural issues.

Due to all of the above, the Ombudsman believes that there is a legal basis in the ZUJIK and ZUP for applicants to be given the opportunity to participate in procedures for the allocation of public funds based on public tenders for the selection of cultural programmes and projects. This is justified not only by the objectivity with which the fulfilment of the criteria must be assessed, but also by the aspiration for the professionalism of the commission's assessment as a basis for the minister's decision-making, in order to speed up the implementation of cultural projects and programmes, while also ensuring the efficient use of budget funds and reducing the number of potential legal proceedings due to allegations of irregularities in the co-financing of cultural programmes from public funds.

In response to the Ombudsman's opinion, the MK gave an explanation about the conduct of public procedures for the selection of cultural projects and also wrote why it opposes the Ombudsman's opinion regarding the specific case. The Ombudsman was informed of the preparation of the Draft Law on Amendments to the Act on Exercising Public Interest in Culture, which amends the currently valid Article 119 of the ZUJIK, which stipulates that before issuing decisions and no later than two months from the end of the opening of applications in the public tender, the MK informs the client in writing of the facts and circumstances relevant to the issuance of the decision, as well as the proposal of the expert commission. The customer can express his opinion on the information in the notification in writing. The Ombudsman expresses satisfaction with the announced change. He considered the complaint justified. Due to violations of several provisions of the ZUP and ZUIJK and the principle of good management, MK violated the principle of legal security; with such conduct, it also threatens the realisation of the public interest in the field of culture. 19. 3-1/2024