The Constitutional Court decided on a petition to review the constitutionality of the Ordinance on the Categorisation of Municipal Roads in the Municipality of Cerklje na Gorenjskem. During the proceedings before the Constitutional Court, a new Ordinance on the Categorisation of Municipal Roads in the Municipality of Cerklje na Gorenjskem was adopted. The Constitutional Court stayed the proceedings to review a petition to initiate proceedings to review the constitutionality and legality challenging the Ordinance no longer in force and decided on the petition challenging the new Ordinance. It abrogated Article 7 of the Ordinance insofar as it categorises public road section No. 540671, i.e. Šenturška Gora–Križišče, in the part that runs on land parcels Nos. 48 and 49, both located in the cadastral municipality of Šenturška Gora. Upon the motion of the petitioners, the Municipality of Cerklje na Gorenjskem was instructed to reimburse the petitioners the costs of the proceedings initiated upon a petition.
In its Decision, the Constitutional Court established that prior to the categorisation of that municipal public road the Municipality did not conclude a legal transaction to acquire land from the petitioners, nor did it carry out an expropriation procedure against them. The mentioned obligation of the municipality is expressly regulated by the Roads Act, which determines that if the land on which a planned public road that the municipality intends to categorise is to run is private property, the municipality must acquire such land prior to such categorisation by a legal transaction or by means of an expropriation procedure. In view of the above, it assessed that Article 7 of Ordinance on Categorisation, insofar it categorises a public road on the land of petitioners, is inconsistent with Article 69 of the Constitution, which determines that expropriation (the revocation or limitation of ownership rights in the public interest) is only possible with the provision of compensation in kind or monetary compensation under conditions established by law. Since Article 7 of the Ordinance on Categorisation in this part inadmissibly interferes with their property right, it is also inconsistent with Article 33 of the Constitution, which guarantees the right to private property.
In its Decision, the Constitutional Court again drew attention to the fact that it has already adopted numerous substantively equivalent decisions and that municipal ordinances on the categorisation of public roads are inconsistent with the Constitution if the municipality did not conclude a legal transaction with the owner to acquire the land therefrom or carry out an expropriation procedure against him or her.
