U-I-144/94

Reference no.:
U-I-144/94
Objavljeno:
Official Gazette of the Republic of Slovenia, no. 45/94 | 15.07.1994
ECLI:
ECLI:SI:USRS:1994:U.I.144.94
Act:
Local Self-Government Act (Official Gazette of the Republic of Slovenia, no. 72/93), Article 13, Article 14, paragraphs 1 and 3.

Ordinance on determination of a referendum area for the establishment of Koper Municipality (Official Gazette of the Republic of Slovenia, no. 38/94).

Ordinance on holding a referendum for the establishment of Koper Municipality (Official Gazette of the Republic of Slovenia, no. 38/94)
Operative provisions:
Provisions of Article 13 and of paragraphs 1 and 3 of Article 14 of the Local Self-Government Act shall be abrogated. Considering the decision under the previous paragraph of the adjudication, the proceedings for evaluation of constitutionality and legality of the Ordinance on determination of a referendum area for the establishment of Koper Municipality and of the Ordinance on holding a referendum for the establishment of Koper Municipality shall be stopped.
Abstract:
Article 13 of the Local Self-Government Act is contrary to the Constitution for allowing in the process of formation of new municipalities the preparation of proposals which are obviously not in conformity with the constitutional concept of local government bodies. Criteria for determination of a municipal area are left to arbitrary selection, which would lead to the creation of functionally incompatible

municipalities.

Article 14 of the Local Self-Government Act, also, does not correspond to the constitutional purpose of the referendum as a form of expression of the will of the population concerning the establishing of a municipality, which obliges the National Assembly to determine a municipal area by statute in accordance with the will of the inhabitants of full age who have cast their votes at such referendum. Paragraphs 1 and 3 of this Article prescribe that the results of a referendum shall be binding, since the National Assembly may only exceptionally make corrections relating to municipal boundaries in the cases when referendum decisions are found to be in conflict.

The Constitutional Court considers that a process, which is based on legally prescribed procedures, is going on in Slovenia, which would lead to the creation of local government bodies which fail to satisfy the constitutional criteria applying to the establishing of local government bodies, and which also fail to conform to the European concept of local self-government. In this connection, the Court considers, that what is involved is the question of implementation of the constitutional concept of local self-government, which has also been harmonised with the European charter on local self- government. In this connection it is the duty of the state governed by the rule of law to make it possible for its citizens to express their interests and to exercise their will in appropriate form on the basis of a legally regulated and predictable way in conformity with the Constitution.

In the formation of municipalities the question of the areas where an urban municipality can be established should also be considered. This is why Article 5 of the Act on Referendum Concerning the Establishing of Municipalities provides for simultaneous meetings of citizens in local communities for the purpose of arriving at proposals concerning the establishing of rural and urban municipalities. For it is inadmissible that an area which fails to satisfy the criteria applying to the urban municipality should subsequent to the creation of a town withdraw and then remain an area within which a rural municipality would be established, without making sure that such a "remainder" satisfies the criteria set for establishing the municipality.

Since the Constitutional Court has abrogated the above mentioned provisions of the Local Self-Government Act, and due to the fact that referendum is consultative in nature and does not bind the National Assembly to establish municipalities solely in accordance with referendum results, the question as to constitutionality of both of the disputed Ordinances has become void of meaning, which is why the Constitutional Court decided to stop the proceedings for evaluation of their constitutionality.

The Constitutional Court finds it admissible by the Constitution in the formation of a municipal area and the establishing of a municipality by statute to base such a decision of the National Assembly on the will of inhabitants as expressed at referendums already carried out, or at repeated referendums.


Password:
Conditions applying to the establishing of an urban municipality.

Referendum in accordance with the Local Self-Government Act - obligatory or consultative nature of referendum.

European concept of local self-government.

Negative separate opinion of a judge of the Constitutional Court.
Legal basis:
Constitution, paragraph 3 of Article 139, Article 5.

Law on the Constitutional Court, paragraph 1 of Article 21, paragraph 4 of Article 26, Article 30.
Note:
For reasons of joint consideration and adjudication, the Constitutional Court had decided with its resolution of 12 July 1994 to attach to the case under consideration the case U-I-149/94.


Document in PDF:
The full text:
U-I-144/94-

15.7.1994

D E C I S I O N

At the meeting held on 15 July 1994 and concerned with the proceedings for evaluation of constitutionality and legality, the Constitutional Court discussed the initiatives of the Citizens' Initiative Slovenian Istria from Koper and of a group of citizens from Dekani, and

m a d e t h e f o l l o w i n g d e c i s i o n :

1. The initiatives of the Citizens' Initiative Slovenian Istria from Koper and of the group of citizens from Dekani for evaluation of constitutionality and legality of the Ordinance on determination of a referendum area for the establishment of Koper Municipality and of the Ordinance on holding a referendum for the establishment of Koper Municipality (Official Gazette of the Republic of Slovenia, no. 38/94) shall be accepted.

2. Provisions of Article 13 and of paragraphs 1 and 3 of Article 14 of the Local Self-Government Act (Official Gazette of the Republic of Slovenia, no. 72/93) shall be abrogated.

3. Considering the decision under the previous paragraph of the adjudication, the proceedings for evaluation of constitutionality and legality of the Ordinance on determination of a referendum area for the establishment of Koper Municipality and of the Ordinance on holding a referendum for the establishment of Koper Municipality (Official Gazette of the Republic of Slovenia, no. 38/94) shall be stopped.

4. It is constitutionally admissible for the National Assembly to establish municipalities by statute on the basis of referendums already carried out or repeated referendums.

R e a s o n s :

A.

The Citizens Initiative "Slovenian Istria" from Koper and a group of citizens form Dekani filed initiatives for evaluation of constitutionality and legality of the Ordinance on determination of a referendum area for the establishment of Koper Municipality and of the Ordinance on holding a referendum for the establishment of Koper Municipality (Official Gazette of the Republic of Slovenia, no. 38/94). In the first initiative it is claimed that the National Assembly has determined the referendum area for establishing the Koper Municipality, comprising settlements of existing Koper Municipality plus three local communities of former Sežana Municipality, by an ordinance, and that the National Assembly has also issued an ordinance for holding a referendum concerning the establishing of Koper Municipality and has set the date of voting. The first initiator claims that both Ordinances are unconstitutional and contrary to statute, because the territorial scope of the so determined referendum area of Koper departs substantially and evidently from the concept of municipality as defined in the Constitution. Since the referendum area is supposed to have been formed in violation of the Constitution and statute, it would also be unreasonable to ascertain the will of the inhabitants of such an area on the basis of the Ordinance on holding the referendum. In the other initiative it is claimed that both of the disputed Ordinances prevent the injured citizens within the framework of the Koper Municipality of excessive size from exercising their constitutionally guaranteed right to make decisions concerning local requirements and interests.

Both initiators also addressed their protests to the National Assembly.

Pending its final decision, the Constitutional Court stayed, upon the proposal of the first initiator, the implementation of the disputed Ordinance on holding a referendum for the establishment of Koper Municipality with its resolution U-I- 144/94-7 of 7 July 1994.

The Secretariat for Legislative and Legal Matters of the National Assembly in its reply points out to a novelty introduced in the first of the disputed Ordinances, namely, that it prescribes that referendum voting in the area of Koper Municipality shall be carried out in a way which will allow the results of voting to be ascertained also for each individual local community. At the meetings that were repeated, members of the community did not decide on whether to integrate into the urban municipality; the question was the same as in the rest of the country, that is, whether they wanted to integrate into Koper Municipality. The disputed Ordinance is supposed to have made it possible also for members of existing Koper Municipality to express their will concerning the establishing of the municipality under equal conditions and rules as used in all other areas in the country at a referendum and in accordance with the Constitution and statute.

In its opinion, the Government Agency on Local Self-Government Reform claims that the disputed Ordinance is in conformity with the Constitution and statutes. They also state that further realization of the project of local-self government is conditional upon the reaching of a consent concerning the objectives and basic solutions, and that some of the solutions in existing laws referring to this field are defective and unfinished. Anticipated modifications in this legislation should allow that in the future several municipalities could also be established in the area of the present Koper Municipality.

B.

The National Assembly passed the disputed Ordinance on determination of a referendum area for the establishment of Koper Municipality (Official Gazette of the Republic of Slovenia, no. 38/94) on the basis of the above mentioned Article 8 of the Act on Referendum Concerning the Establishing of Municipalities, and the Ordinance on holding a referendum for the establishment of Koper Municipality (Official Gazette of the Republic of Slovenia, no. 38/94) on the basis of Article 9 of the same Act. The first Ordinance defines the referendum area for the establishment of Koper Municipality in the same way as provided for in Section I, clause 73, of the Ordinance on Referendum Areas for the Establishment of Municipalities (Official Gazette of the Republic of Slovenia, no. 22/94), which had been abrogated by the Constitutional Court with its decision no. U-I-90/94 of 20 May 1994. The referendum area for the establishment of Koper Municipality in accordance with the first of the disputed Ordinances thus comprises the area of 104 settlements, including areas of certain local communities of former Sežana Municipality (Podgorje, Rakitovec and Zazid). The Ordinance prescribes that referendum voting shall be carried out in a way which will allow the results of voting to be ascertained also for each individual local community.

The reason for the introduction of local self-government lies in functional inadequacy and excessive size of former municipality - a "political entity" which was neither municipality in terms of its territorial structure nor a self- governing unit in terms of its powers and the manner of their exercising (decision of the Constitutional Court no. U-I-13/94 of 21 January 1994). The objection that, at a referendum, people can decide for a municipality of such size as they may desire is not true. For in accordance with the Constitution, the municipality is the basic territorial entity. This is the only way for Article 143 of the Constitution, which allows integration of municipalities into wider self-governing local government bodies, to make sense.

Establishment of municipalities is an essential condition for actual implementation of the system of local self-government.

For in Section V.a) of the Constitution (Articles 138 through 144) the municipality, the urban municipality and the region are given the status of local government bodies. Municipality is the basic local government body, whose constitutional concept is based on (1) common needs and interests (2) of the inhabitants (3) of one or more settlements (4) taking part in the management of public affairs of local (regional) nature (5) independently, that is, on a self-governing basis in relation to the State. The municipality, then, is a community of people living within the area of one or more mutually interconnected settlements. Its particular characteristic is territorial integration, which is the basis for the development of a network of interpersonal and neighbourly relations and of an awareness of belonging to the municipality as a basic territorial entity.

In its Constitution, the Republic of Slovenia has included the complete concept of local government bodies as defined in the European charter on local self-government. This charter stresses local administrations as the basis of any democratic regime and the right of citizens to take part in decision making relating to public affairs as a democratic principle which is present in all members of the Council of Europe. The charter points out that this right can be exercised most directly on local level and that the existence of local administrations with actual responsibilities can be made possible by an administration which is efficient and also close to citizens. The charter points out that protection and renewed strengthening of local self-government in the countries of Europe is an important contribution to the building of a Europe whose concept is based on principles of democracy and decentralization of power. This, however, implies as specified in the charter, the existence of a local administration with democratically constituted bodies, a high degree of autonomy and financial resources required for their operation. The charter provides that the principle of local self-government shall be taken into consideration in national legislations and, where viable, included in Constitutions. The term local self-government as used in the European charter on local self-government implies the right and capacity of local authorities within the limits defined by statute to prescribe and regulate a major part of public affairs on the basis of their own responsibility and in the interest of local population. The present political and territorial division into administrative socio-economic communities is far from satisfying the criteria of the European charter on local self- government, as well as from the constitutional definition of local government bodies in their territorial and functional sense. From the point of view of territorial scope, current municipalities are with the exception of a few smaller ones inappropriate with respect to the criterium according to which local powers shall be exercised on local level by local population.

Local self-government is guaranteed in basic provisions of the Constitution. And in the Section on local self-government this principle is further developed. Since the period set for harmonization of legislation with the Constitution has already come to an end, the duty of the State is to provide a constitutional concept of local self-government within the framework defined by the Constitution and implementing legislation, in so far as the latter is in conformity with the Constitution.

By adopting the Constitution, the Republic of Slovenia has decided to transform existing administrative municipalities into local government bodies in territorial and functional sense, and to provide the latter with constitutionally guaranteed autonomy. Which means that individuals living in a common territory, through which they are linked on the basis of its common interests and requirements, shall manage their common affairs relating to their everyday life without any interference on the part of superior authorities. Delimitation of competencies between the State and a local government body is the leading characteristic of local self-government, and is at the same time a way of participation in the management of society and the State. The other characteristic of local self- government, which is equally important, is territorial interconnection of people of a certain area. The territory of a local government body shall be of such a scope as will ensure through direct connections of its inhabitants the awareness of forming a community in which such inhabitants decide concerning the matters of common importance. Thus, territorial dimension is the major element of any local government body. The third element is the number of inhabitants, which shall be such as will allow the implementation of local self-government in the functional sense. This implies that the lower and the upper limits as to the number of inhabitants are those which allow the constituting of the bodies of the community in the sense of representative government, and that the number of inhabitants is such as will make the organization of such public services, as are indispensable to community life, reasonable. The structuring of local government bodies shall not be such as to prevent the inhabitants from being aware of their mutual connection through their common interests.

Article 139 of the Constitution provides that a municipality may be established by statute following a vote in favour of its establishment at a referendum conducted to ascertain the will of the people in the particular area. The will of the people, then, is a decisive factor when establishing a municipality, naturally in so far as in conformity with the constitutional and statutory concept of municipality. And the whole of the law on local-self-government should be based on such constitutional concept.

However, the Constitution and general provisions of Local Self-Government Act are not observed in Articles 13 and 14 of the said Act. Article 13 specifies the functions which an area must comprise to be able to constitute a municipal area. Since such an area should exercise the majority of the 11 essential functions of municipality, in the process of creation of municipalities this allowed the preparation of proposals which were obviously not in conformity with the constitutional concept of local government bodies. The criteria applying to the determination of the municipal area have been left to arbitrary selection, which would lead to the development of municipalities that would be functionally incompatible. This is why the Constitutional Court calls upon the National Assembly to determine, on the basis of prepared expert guidelines, uniform criteria and the cases and conditions under which deviations from such criteria are allowed.

Article 14 of the Local Self-Government Act, also, does not correspond to the constitutional purpose of the referendum as a form of expression of the will of the population concerning the establishing of a municipality, which obliges the National Assembly to determine a municipal area by statute in accordance with the will of the inhabitants of full age who have cast their votes at the referendum. Paragraphs 1 and 3 of this Article prescribe that the results of a referendum shall be binding, since the National Assembly may only exceptionally make corrections relating to municipal boundaries in the cases when referendum decisions are found to be in conflict.

In the Constitution, Article 139, paragraph 3, such referendum is not prescribed, but it is required that prior to determining the area of a municipality by statute the will of the people should be ascertained at a referendum. It is within the constitutionally defined sphere of competence of the National Assembly, however, to establish a municipality and determine its area, taking into consideration the

constitutional concept, statutory criteria and the will of the people within that framework.

If a particular referendum area were not in conformity with the constitutional concept of local self-government, the results of the referendum would oblige the National Assembly on the basis of Article 14 of the Act to adopt the Act which would be in conflict with the Constitution in reference with this part.

The Constitutional Court considers that a process, which is based on legally prescribed procedures, is going on in Slovenia, which would lead to the creation of local government bodies which fail to satisfy the constitutional criteria applying to the establishing of local government bodies.

This is why the Constitutional Court abrogated Article 13 and paragraphs 1 and 3 of Article 14 of the Local Self-Government Act. This was done on the basis of Article 30 of the Law on the Constitutional Court (Official Gazette of the Republic of Slovenia, no. 15/94), because the Court thought that the abrogation of the provisions of the Act, whose

constitutionality was not required to be evaluated in the initiative, was essential to the solution of the matter, and since the abrogated provisions were at the same time interrelated with the disputed Ordinances.

The will expressed at the referendum by the population of the entire referendum area as well as by inhabitants of its individual parts shall have to be taken into account in so far as the municipality formed on its basis will conform to the constitutional concept of local self-government and statutory provisions with which the National Assembly will replace the disputed provisions of the Local Self-Government Act relating thereto. The Constitutional Court adds that, based on connexity, it only considered Articles 13 and 14 of the Local Self-Government Act, which are directly connected with the disputed Ordinances. It is for the law-giver to determine whether more detailed conditions and procedures, which it will set in connection with the transformation of municipalities into self-governing communities, will require modifications or amendments also to other provisions of the Local Self- Government Act and of related regulations.

The Constitutional Court did not change its view concerning the referendum area for the establishment of Koper Municipality, which was stated in the decision no. U-I-90/94.

The Court considers that the completion of referendums, which should lead to the creation of numerous small municipalities on the one hand and of unchanged, or even expanded existing municipalities, has set in motion a process which fails to ensure the formation of local government bodies in conformity with the Constitution, thus also failing to guarantee to citizens the exercising of the right to local self-government.

The Constitutional Court also considers that what is involved is the question of implementation of the constitutional concept of local-self-government, which has also been harmonised with the European charter on local self-government.

In this connection it is the duty of the state governed by the rule of law to make it possible for its citizens to express their interests and to exercise their will in appropriate form on the basis of a legally regulated and predictable way in conformity with the Constitution.

In the formation of municipalities the question of the areas where an urban municipality can be established should also be considered. This is why Article 5 of the Act on Referendum Concerning the Establishing of Municipalities provides for simultaneous meetings of citizens in local communities for the purpose of arriving at proposals concerning the establishing of rural and urban municipalities. For it is inadmissible that an area which fails to satisfy the criteria applying to the urban municipality should subsequent to the creation of a town withdraw and then remain an area within which a rural municipality would be established, without making sure that such a "remainder" satisfies the criteria set for establishing the municipality.

The Constitutional Court considers that the National Assembly in its capacity of supreme legislative authority should, by virtue of the fact that the period set for harmonization of legislation with the Constitution has already come to an end, ensure in the most efficient way the delimiting of State functions from local matters. In this connection, undoubtedly the most essential factor is the dividing of Slovenia into such municipalities and urban municipalities as will be capable of taking over all of the functions which are essential for the realization of interests of local population, with the exception of those that belong inherently to the State.

Since the Constitutional Court abrogated the above mentioned provisions of the Local Self-Government Act, and due to the fact that referendum is consultative in nature and does not bind the National Assembly to establish municipalities solely in accordance with referendum results, the question as to constitutionality of both of the disputed Ordinances has become void of meaning, which is why the Constitutional Court decided to stop the proceedings for evaluation of their constitutionality.

The Constitutional Court finds it admissible by the Constitution in the formation of a municipal area and the establishing of a municipality by statute to base such a decision of the National Assembly on the will of inhabitants as expressed at referendums already carried out, or at repeated referendums.

It is for the National Assembly to determine, on the basis of the constitutional concept of municipality, of the newly developed statutory criteria concerning the establishing of a municipality, of the constitutional provision according to which a municipality shall be established by statute after a referendum has been held in that connection, and of this Decision of the Constitutional Court, whether the referendum should be repeated at any particular area.

C.

This Decision was made on the basis of paragraph 1 of Article 21, paragraph 4 of Article 26 and Article 30 of the Law on the Constitutional Court (Official Gazette of the Republic of Slovenia, no. 15/94) by the Constitutional Court at its meeting of 14 July 1994 in the following composition: Dr. Tone Jerovšek, President, and Dr. Peter Jambrek, Matevž Krivic, M.L., Janez Snoj, M.L., Dr. Janez Šinkovec, Dr. Lovro Šturm, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M. Zupančič, the judges. The decision was reached unanimously with respect to section 1 of the adjudication, and with eight votes in favour and one vote against the other sections. The judge Krivic voted against and expressed a separate negative opinion.

P r e s i d e n t:

Dr. Tone Jerovšek


Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Citizens' Initiative Slovenian Istria, Koper
Date of application:
05.07.1994
Date of decision:
15.07.1994
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN00655