U-I-183/94

Reference no.:
U-I-183/94
Objavljeno:
Official Gazette of the Republic of Slovenia, no. 73/94 and OdlUS III, 122 | 09.11.1994
ECLI:
ECLI:SI:USRS:1994:U.I.183.94
Act:
Act on the Establishing of Municipalities and Prescribing of their Territorial Boundaries (Official Gazette of the Republic of Slovenia, no. 60/94), Articles 2 and 3.
Operative provisions:
1. Articles 2 and 3 of the Act on the Establishing of Municipalities and Prescribing of their Territorial Boundaries are for the reasons stated in the Reasons section of this Decision in conflict with the Constitution. 2. The non-conformity stated in the preceding paragraph shall be remedied by the National Assembly not later than six months prior to the announcement of the next local elections.
Abstract:
Those clauses of Article 2 of the Act are in conflict with the Constitution by which such municipalities have been established as fail to fulfil the constitutional and statutory conditions having been specified by the National Assembly itself as of substantial nature in the Local Self-Government Act.

By its territorial scope, the number of communities and inhabitants, and by the resulting internal heterogeneity, the area of Koper Municipality determined by the corresponding Ordinance departs so substantially and evidently from the concept of municipality as defined in the Constitution that it fails to correspond to an area within which the establishment of a municipality would be possible.

Such transformation into new self-governing municipalities of former municipalities, which were not in conformity with the new concept of local self-government, as would be restricted only to specific areas, while other areas would require further adjustments, would imply that, with respect to local self-government the Constitution would not be implemented concurrently in the whole of Slovenia, and this would be contrary to the principles of the state governed by the rule of law. And concurrent starting with the implementation of local self-government is also urgently required to make possible concurrent transfer of state functions to municipalities, and because of enactment of regional legislation, which will lay new foundations for certain subsystems of the society in the sphere of public services.

By pondering the assets which would be affected in controversial areas by such or other decision of the Constitutional Court, the latter established that abrogation of the Act would imply that in controversial areas elections of new bodies could not be carried out, while the expiry of the period, by which the term of office of current municipal bodies has been extended by the Enabling Statute, would create a legal void.
Password:
Conditions applying to the establishing of a municipal area (common needs and interests of the inhabitants).
Use of the will of the inhabitants as shown at a referendum as the basis in defining a municipal area.
Referendum-based will of the inhabitants as binding upon the National Assembly.
Investigatory referendum.
Interpretative decision of the Constitutional Court.
Legal basis:
Constitution of 1991, Articles 64 and 139.
Law on the Constitutional Court, Article 48.
Note:
In stating the reasons for this Decision the Constitutional Court has made reference to its decisions concerning the cases U-I-144/94, U-I-85/94 and U-I-90/94.

For reasons of joint consideration and adjudication, the Constitutional Court decided with its resolution of 9 November 1994 to attach to the case under consideration the cases U-I-185/94, U-I-186/94, U-I-187/94, U-I-189/94, U-I-190/94, U-I-191/94, U-I-192/94, U-I-193/94, U-I-194/94, U-I-195/94, U-I-196/94, U-I-197/94, U-I-198/94, U-I-199/94, U-I-200/94, U-I-201/94, U-I-202/94, U-I-203/94, U-I-205/94, U-I-206/94, U- I-207/94, U-I-208/94, U-I-209/94, U-I-211/94, U-I-212/94, U-I- 213/94, U-I-214/94, U-I-215/94, U-I-216/94, U-I-217/94, U-I- 218/94, U-I-219/94, U-I-221/94, U-I-222/94, U-I-223/94, U-I- 224/94, U-I-225/94, U-I-226/94, U-I-227/94, U-I-229/94, U-I- 231/94, U-I-232/94, U-I-236/94, U-I-238/94, U-I-239/94, U-I- 240/94, U-I-241/94, U-I-242/94, U-I-243/94, U-I-244/94, U-I- 246/94, U-I-247/94, U-I-248/94, U-I-249/94, U-I-250/94, U-I- 251/94, U-I-252/94, U-I-253/94, U-I-255/94, U-I-256/94, U-I- 257/94, U-I-260/94, U-I-261/94, U-I-262/94, U-I-263/94, U-I- 264/94, U-I-265/94, U-I-266/94, U-I-267/94, U-I-268/94, U-I- 269/94, U-I-270/94, U-I-271/94, U-I-272/94, U-I-273/94, U-I- 275/94, U-I-276/94, U-I-277/94, U-I-278/94 and U-I-281/94.
Document in PDF:
The full text:
U-I-183/94
9.11.1994
 
D E C I S I O N
 
At the meeting held on 9 November 1994 and concerned with the proceedings for evaluation of constitutionality of Articles 2 and 3 of the Act on the Establishing of Municipalities and Prescribing of their Territorial Boundaries (Official Gazette of the Republic of Slovenia, no. 60/94), the Constitutional Court
 
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. Articles 2 and 3 of the Act on the Establishing of Municipalities and Prescribing of their Territorial Boundaries (Official Gazette of the Republic of Slovenia, no. 60/94) are for the reasons stated in the Reasons section of this Decision in conflict with the Constitution.
 
2. The non-conformity stated in the preceding paragraph shall be remedied by the National Assembly not later than six months prior to the announcement of the next local elections.
 
R e a s o n s :
 
A.
 
In the period between 6 and 26 October 1994, the
 
Constitutional Court received one request submitted by a municipal assembly and 79 initiatives of local communities and their councils, and of individual persons for commencing the proceedings for evaluation of constitutionality of individual clauses of Articles 2 and 3 of the Act on the Establishing of Municipalities and Prescribing of their Territorial Boundaries (hereinafter: "the Act"), which it has all joined for the purpose of joint consideration and adjudication. The Constitutional Court will separately consider those applications or parts thereof which refer to the
 
constitutionality of the specification of names and seats of the established municipalities.
 
The adjudication hereof applies to:
 
1. the initiative of the Vitanje Local Community for evaluation of constitutionality of the Act in reference with the annexing of the Rogla community to the Zreče Municipality (Article 2, clause 133) instead of to the Vitanje Municipality (U-I-183/94);
 
2. the initiative of the Celje Municipality and the Local Communities of Dobrna, Frankolovo, Nova cerkev, Svetina, Vojnik and štore for evaluation of constitutionality of the Act in reference with the new municipalities of štore (Article 2, clause 117) and the new Vojnik Municipality (Article 2, clause 128) (U-I-185/94);
 
3. the initiative of the Grad Local Community for evaluation of constitutionality of the Act in reference with the establishing of the Kuzma Municipality instead of the Grad Municipality (Article 2, clause 53) (U-I-186/94);
 
4. the initiative of the Svetina Local Community for evaluation of constitutionality of the Act for its inclusion in the štore Municipality instead of in the Urban Municipality of Celje (Article 2, clause 128 and Article 3, clause 1) (U-I- 187/94);
 
5. the initiative of the Hajdina Local Community for evaluation of constitutionality of the Act for failure of the latter to establish the Hajdina Municipality and for including the community of the referendum area in the Urban Municipality of Ptuj and the Kidričevo Municipality respectively (Article 2, clauses 44 and 124; Article 3, clause 9) (U-I-189/94);
 
6. the initiative of the Iška vas Local Community for evaluation of constitutionality of the Act for failure of the latter to establish the Iška vas Municipality and for including the Iška vas Local Community in the Ig Municipality instead of in the Urban Municipality of Ljubljana (Article 2, clause 36) (U-I-190/94);
 
7. the initiative of the Loška dolina Local Community for evaluation of constitutionality of the Act for failure of the latter to establish a municipality which would comprise the villages of Loška dolina (U-I-191/94);
 
8. the initiative of Mr. Vinko Mlinarič from Sovjak for evaluation of constitutionality of the Act, for establishing the Sveti Jurij Municipality (Article 2, clause 106), which is claimed not to satisfy the prescribed material requirements (U-I-192/94);
 
9. the initiative of the Osilnica Local Community for evaluation of constitutionality of the Act, for establishing the Osilnica Municipality (Article 2, clause 80) in violation of the referendum decision (U-I-193/94);
 
10. the initiative of the Rateče - Planica Local Community for evaluation of constitutionality of the Act, for including Rateče, contrary to referendum decision, in the Kranjska gora Municipality (Article 2, clause 50) (U-I-194/94);
 
11. the initiative of the Struga Local Community for evaluation of constitutionality of the Act, for including the settlements of the Local Community in the Dobrepolje Municipality instead of in the Kočevje Municipality (Article 2, clause 19) (U-I-195/94);
 
12. the initiative of the Teharje Local Community for evaluation of constitutionality of the Act, for including Teharje in the Urban Municipality of Celje (Article 3, clause 1) and for failure to establish Teharje as an independent municipality in accordance with referendum decision (U-I- 196/94);
 
13. the initiative of the Vrhpolje-Zalog Local Community for evaluation of constitutionality of the Act, for including the Community in the Moravče Municipality instead of in the Domžale Municipality in accordance with the will expressed by the inhabitants (Article 2, clause 72) (U-I-197/94);
 
14. the initiative of Municipal Assembly of Nova Gorica for evaluation of constitutionality of the Act, for dividing the area of the existing municipality into the Municipalities of Brda, Kanal and Miren-Kostanjevica (Article 2, clauses 7, 43 and 70), and into the Urban Municipality of Nova Gorica (Article 3, clause 7) against the will expressed by the inhabitants, to keep the existing municipality a unit (U-I- 198/94);
 
15. the initiative of the Peče Local Community for evaluation of constitutionality of the Act, for including the Local Community in the Moravče Municipality (Article 2, clause 72) against the will expressed by the inhabitants (U-I-198/94);
 
16. the initiative of Dr. Julij Tittla, Jadran Luin, Valerija Jakovac, Aleksander Gregorič and Danijel Starman from Koper for evaluation of constitutionality of clause 2 of Article 3 of the Act, which defines the area of the Urban Municipality of Koper, and of Article 5 of the Act, which defines the areas inhabited by more than one nationality (U-I-200/94);
 
17. the initiative of the Local Communities of Tišina and Gederovci for evaluation of constitutionality of the Act, for including them in the Cankova-Tišina Municipality (Article 2, clause 10) (U-I-201/94);
 
18. the initiative of Leopold Vrbovšek from štore for evaluation of constitutionality of the Act, for including the Svetina Local Community in the štore Municipality (Article 2, clause 117) (U-I-202/94);
 
19. the initiative of Kurt Germič and other inhabitants of Rožički vrh and Stanetinci for evaluation of constitutionality of the Act, for including the Local Community of Videm ob ščavnici in the Sveti Jurij Municipality (Article 2, clause 106) (U-I-203/94);
 
20. the initiative of the Local Community of Ribnica na Pohorju for evaluation of constitutionality of the Act, for failure of the latter to establish Ribnica na Pohorju as an independent municipality and for establishing the Municipality of Podvelka-Ribnica na Pohorju (Article 2, clause 85) (U-I- 205/94);
 
21. the initiative of the Fram Local Community for evaluation of constitutionality of the Act, for including the Community in the new Rače-Fram Municipality (Article 2, clause 89) (U-I- 206/94);
 
22. the initiative of Ivan Brlek and a group of inhabitants of a part of the Lancova community for evaluation of
 
constitutionality of the Act, for including them in the Videm Municipality instead of in the Hajdina Municipality or the Urban Municipality of Ptuj (Article 2, clause 124) (U-I- 207/94);
 
23. the initiative of the Desternik Local Community for evaluation of constitutionality of the Act, for failure of the latter to establish the said community as an independent municipality and for including it in the Municipality of Desternik-Trnovska vas (Article 2, clause 17) (U-I-208/94);
 
24. the initiative of the Vojnik Local Community for evaluation of constitutionality of the Act, for including it in the Vojnik Municipality (Article 2, clause 128) instead of in the Urban Municipality of Ptuj (Article 3, clause 9) (U-I- 209/94);
 
25. the initiative of the Local Communities of Dob, šentvid pri Stični and Temenica for evaluation of constitutionality of the Act, for including them, against the will expressed by the inhabitants at the referendum, in the Ivančna gorica Municipality (Article 2, clause 38) and for failure to establish them as an independent municipality, in spite of the fact that the Communities formed an independent referendum area (U-I-211/94);
 
26. the initiative of the Local Community of Nova vas - Bloke for evaluation of constitutionality of the Act, for failure of the latter to establish the Community as an independent municipality (U-I-212/94);
 
27. the initiative of inhabitants of the Placa community for evaluation of constitutionality of the Act, for including them in the Municipality of Desternik-Trnovska vas (Article 2, clause 17) instead of in the Urban Municipality of Ptuj (Article 3, clause 9) (U-I-213/94);
 
28. the initiative of the Tabor Local Community for evaluation of constitutionality of the Act, for failure of the latter to establish the Community as an independent municipality and for including it in the žalec Municipality (Article 2, clause 134) (U-I-214/94);
 
29. the initiative of the Local Community of Velika vas-Dešen for evaluation of constitutionality of the Act, for including it in the Moravče Municipality (Article 2, clause 72) instead of in the Domžale Municipality (U-I-215/94);
 
30. the initiative of the Local Community of Velika vas-Dešen for evaluation of constitutionality of the Act, for including the Velika vas community in the Moravče Municipality (Article 2, clause 72) instead of in the Municipality of Dol pri Ljubljani (U-I-216/94);
 
31. the initiative of the štanjel Local Community for evaluation of constitutionality of the Act, for including it in the Komen Municipality (Article 2, clause 48) instead of in the Sežana Municipality (U-I-217/94);
 
32. the initiative of a group of inhabitants of a part of the Dobrovlje community for evaluation of constitutionality of the Act, for including them in the Zreče Municipality (Article 2, clause 133) instead of in the Slovenske Konjice Municipality (U-I-218/94), with the exception of the section of the initiative which refers to the evaluation of constitutionality and legality of an Ordinance on changes concerning the area of the communities of Dobrova and Gabrovlje and on the naming of the Dobrovlje community (Official Gazette of the Republic of Slovenia, no. 17/94) and which shall be decided separately by the Court;
 
33 the initiative of the Beričevo-Brinje Local Community for evaluation of constitutionality of the Act, for including it in the Municipality of Dol pri Ljubljani (Article 2, clause 21) instead of in the Urban Municipality of Ljubljana (U-I- 219/94);
 
34. the initiative of the Local Communities of Poljane in Javorje for evaluation of constitutionality of the Act, for including them in the Municipality of Gorenja vas-Poljane (Article 2, clause 26) instead of in the škofja Loka Municipality (U-I-221/94);
 
35. the initiative of the Nova cerkev Local Community for evaluation of constitutionality of the Act, for including it in the Vojnik Municipality (Article 2, clause 128) instead of in the Urban Municipality of Celje (Article 3, clause 1) (U-I- 222/94);
 
36. the initiative of the Local Communities of Podnanos and Lozice for evaluation of constitutionality of the Act, for failure of the latter to establish them as an independent municipality and for including them in the Vipava Municipality (Article 2, clause 125, and not clause 12a as is erroneously stated in the initiative) (U-I-223/94);
 
37. the initiative of Stojan Terčič and a group of inhabitants of the Podsabotin community for evaluation of
 
constitutionality of the Act, for including the community in the Brda Municipality (Article 2, clause 7) instead of in the Urban Municipality of Nova Gorica (U-I-224/94);
 
38. the initiative of the žetale Local Community for evaluation of constitutionality of the Act, for failure of the latter to establish the Community as an independent municipality and for including it in the Majšperk Municipality (Article 2, clause 65) (U-I-225/94);
 
39. the initiative of the Brezovci Local Community for evaluation of constitutionality of the Act, for including the Community in the Puconci Municipality (Article 2, clause 88) instead of in the Urban Municipality of Murska Sobota (U-I- 226/94);
 
40. the initiative of the Ljubljana šentvid Local Community for evaluation of constitutionality of the Act, for including the Community in the Urban Municipality of Ljubljana (Article 3, clause 4) (U-I-227/94);
 
41. the initiative of the Draga Local Community for evaluation of constitutionality of the Act, for failure of the latter to include the whole Local Community in the Kočevje Municipality and for including it also in the Draga Municipality (Article 2, clause 62);
 
42. the initiative of the Local Communities of Vransko, Tabor, Polzela, Braslovče and Andraž for evaluation of constitutionality of the Act, for establishing the žalec Municipality (Article 2, clause 134) instead of establishing in the place of the latter five municipalities: Vransko, Braslovče, Polzela, Prebold and žalec (U-I-231/94);
 
43. the initiative of the Local Community of Otalež pri Cerknem for evaluation of constitutionality of the Act, for including the Community in the Cerkno Municipality (Article 2, clause 13) instead of in the Idrija Municipality (U-I-232/94);
 
44. the initiative of the Local Community of Bistrica ob Sotli for evaluation of constitutionality of the Act, for including the Community in the Podčetrtek Municipality (Article 2, clause 84) and for failure to establish it as an independent municipality (U-I-236/94);
 
45. the initiative of the Horjul Local Community for evaluation of constitutionality of the Act, for including the Community in the Municipality of Dobrova - Horjul - Polhov Gradec (Article 2, clause 20) and for failure to establish it as an independent municipality (U-I-238/94);
 
46. the initiative of the Lavrica Local Community for evaluation of constitutionality of the Act, for including the Community in the škofljica Municipality (Article 2, clause 113) instead of in the Urban Municipality of Ljubljana (U-I- 239/94);
 
47. the initiative of the Loški potok Local Community for evaluation of constitutionality of the Act, for establishing the Community, together with the Draga Local Community, as the Loški potok Municipality (Article 2, clause 62), because the inhabitants have not made any prior decision in that connection (U-I-240/94);
 
48. the initiative of the Mačkovci Local Community for evaluation of constitutionality of the Act, for including the Community in the Puconci Municipality (Article 2, clause 88) and for failure to establish the Mačkovci Municipality (U-I- 241/94);
 
49. the initiative of the Opatje selo Local Community for evaluation of constitutionality of the Act, for including the Community in the Miren-Kostanjevica Municipality (Article 2, clause 70), although the inhabitants were against the establishing of the said Municipality (U-I-242/94);
 
50. the initiative of the Local Community of Sela na Krasu for evaluation of constitutionality of the Act, for including the Community in the Miren-Kostanjevica Municipality (Article 2, clause 70) instead of in the Urban Municipality of Nova Gorica (U-I-243/94);
 
51. the initiative of the Vitomarci Local Community for evaluation of constitutionality of the Act, for including the Community in the Municipality of Destrnik-Nova vas (Article 2, clause 17) and for failure to establish it as an independent municipality (U-I-244/94);
 
52. the initiative of the Dobrovnik Local Community for evaluation of constitutionality of the Act, for including the Community in the Lendava Municipality (Article 2, clause 56) and for failure to establish it as an independent municipality (U-I-246/94);
 
53. the initiative of the Hodoš Local Community for evaluation of constitutionality of the Act, for including the Community in the Municipality of Hodoš-šalovci (Article 2, clause 32) and for failure to establish it as an independent municipality (U-I-247/94);
 
54. the initiative of the Nazarje Local Community for evaluation of constitutionality of the Act, for including the communities of Dobrovlje nad Mozirjem and Prihova in the Mozirje Municipality (Article 2, clause 74) instead of in the Nazarje Municipality (U-I-248/94);
 
55. the initiative of the Prosenjakovci - Partosfalva Local Community for evaluation of constitutionality of the Act, for including the Community in the Moravske toplice Municipality (Article 2, clause 73) and for failure to establish it as an independent municipality under special conditions relating to the area inhabited by more than one nationality (U-I-249/94);
 
56. the initiative of the Anhovo-Deskle Local Community for evaluation of constitutionality of the Act, for establishing the Kanal Municipality (Article 2, clause 43) against the will expressed at the referendum (U-I-250/94);
 
57. the initiative of the United List of Social Democrats of škofja Loka for evaluation of constitutionality of the Act, for failure of the latter to include the communities of žiri, Gorenja vas-Poljane and železniki in the škofja Loka Municipality (Article 2, clause 112) (U-I-251/94);
 
58. the initiative of the Council of the Notranje Gorice Local Community for evaluation of constitutionality of the Act, for including the Community in the Brezovica Municipality (Article 2, clause 8) instead of in the Urban Municipality of Ljubljana (U-I-252/94);
 
59. the initiative of the Dolsko Local Community for evaluation of constitutionality of the Act, for establishing the Municipality of Dolsko pri Ljubljani (Article 2, clause 21) and, consequently, for failure to include the Local Community in the Urban Municipality of Ljubljana;
 
60. the initiative of the Senožeče Local Community for evaluation of constitutionality of the Act, for failure of the latter to establish the Community as an independent municipality (U-I-255/94);
 
61. the initiative of the Solčava Local Community for evaluation of constitutionality of the Act, for including the Community in the Luče Municipality (Article 2, clause 63) and for failure to establish it as an independent municipality (U- I-256/94);
 
62. the initiative of the Sveta Trojica Local Community for evaluation of constitutionality of the Act, for including the Community in the Tolmin Municipality (Article 2, clause 55) and for failure to establish it as an independent municipality (U-I-257/94);
 
63. the initiative of the Local Community of Kostanjevica na Krasu for evaluation of constitutionality of the Act in reference with territorial boundaries of the Urban Municipality of Nova Gorica (U-I-260/94);
 
64. the initiative of the Leskovec Local Community for evaluation of constitutionality of the Act, for including the Community in the Videm Municipality (Article 2, clause 124), which is contrary to the will of the inhabitants expressed at the referendum (U-I-261/94);
 
65. the request of the Municipal Assembly of Ljutomer for evaluation of constitutionality of the Act, for including the community of Bolehnečici in the Sveti Jurij Municipality (Article 2, clause 106) (U-I-262/94);
 
66. the initiative of the Local Community of Lovrenc na Pohorju for evaluation of constitutionality of the Act, for failure of the latter to establish the Community as a municipality (U-I-263/94);
 
67. the initiative of the Local Communities of Poljčane and Studenice for evaluation of constitutionality of the Act, for failure of the latter to establish them as an independent municipality (U-I-264/94);
 
68. the initiative of Srečko žižek and others from Spodnji Ivanjci for evaluation of constitutionality of the Act, for including the community of Očeslavci in the Gornja Radgona Municipality instead of in the Radenci Municipality (U-I- 265/94);
 
69. the initiative of the Rakitna Local Community for evaluation of constitutionality of the Act, for failure of the latter to establish the Community as an independent municipality (U-I-266/94);
 
70. the initiative of the Krka Local Community for evaluation of constitutionality of the Act, for including the Community in the Ivančna Gorica Municipality instead of in the Grosuplje Municipality (U-I-268/94);
 
71. the initiative of the Razkrižje Local Community for evaluation of constitutionality of the Act, for failure of the latter to establish the Community as an independent municipality (U-I-269/94);
 
72. the initiative of the Green Movement of Piran for evaluation of constitutionality of the Act, for failure of the latter to make the Piran Municipality an urban municipality (U-I-270/94);
 
73. the initiative of the Cerkvenjak Local Community for evaluation of constitutionality of the Act, for failure of the latter to establish the Community as an independent municipality (U-I-271/94);
 
74. the initiative of a group of inhabitants of Local Communities of Vodice and Bukovica šinkovturn for evaluation of constitutionality of the Act, for including them in the Vodice Municipality (Article 2, clause 127) (U-I-272/94);
 
75. the initiative of Alojz Kos from šentjernej for evaluation of constitutionality of the Act, for including the settlements of the Orehovica Local Community in the šentjernej Municipality (U-I-273/94);
 
76. the initiative of Jože Beg from Otočec ob Krki for evaluation of constitutionality of the Act, for failure of the latter to conform to the Constitution in prescribing territorial boundaries of the Urban Municipality of Novo Mesto (Article 3, clause 8) (U-I-275/94);
 
77. the initiative of a group of inhabitants of the Klopce Local Community for evaluation of constitutionality of the Act, for including the Community in the Municipality of Dol pri Ljubljani (Article 2, clause 21) (U-I-276/94);
 
78. the initiative of the Podbrezje Local Community for evaluation of constitutionality of the Act, for including the Community in the Naklo Municipality (U-I-277/94);
 
79. the initiative of village committees of šentjošt, Kurja vas, Butajnova and Planina for evaluation of constitutionality of the Act, for failure of the latter to establish the said communities as an independent municipality and for including them in the Dobrova Municipality (U-I-278/94);
 
80. the initiative of a group of inhabitants of the Dolič Local Community for evaluation of constitutionality of the Act, for including the communities of Gornji Dolič, Srednji Dolič, Kozjak and Završe-del in the Mislinja Municipality (Article 2, clause 71) instead of in the Urban Municipality of Slovenj Gradec (U-I-281/94).
 
In the applications, the following reasons for disputing Articles 2 and 3 of the Act are given:
 
1. infringement of paragraph 2 of Article 139 of the Constitution, supposedly for including in the areas of new municipalities communities and parts of them which are not bound together by common needs and interests of the inhabitants,
 
2. infringement of paragraph 3 of Article 139 of the Constitution, supposedly for failure in prescribing territorial boundaries of new municipalities to take into consideration the will of the people of the area affected as expressed at a referendum.
 
The second reason is invoked by initiators in particular in reference with the three groups of cases which follow:
 
a) the establishing of a municipality in the area where the result of the referendum was negative,
 
b) failure to establish a municipality in a referendum area where the decision to establish a municipality was made, c) the including of a particular area in a newly established municipality, in spite of the fact that the inhabitants decided for an independent municipality, or for inclusion in another other municipality.
 
In one of the initiatives it is claimed that the conditions which have been prescribed by statute concerning the establishing of a municipality should not change after the completion of the referendum concerning the determination of the area of a new municipality, because accrued rights can not be encroached upon by statute. The evaluation of constitutionality of Articles 13 and 13.a of the Local Self- Government Act (Official Gazette of the Republic of Slovenia, nos. 72/93, 6/94 - decision of the Constitutional Court, 45/94 - decision of the Constitutional Court, and 57/94; hereinafter: "LSGA") is the object of the case no. U-I- 234/94).
 
In the initiative of Dr. Julij Tittla, Jadran Luin, Valerija Jakovac, Aleksander Gregorič and Danijel Starman from Koper dated 11 October 1994 and amended on 24 October 1994, clause 2 of Article 3 of the Act is disputed for establishing the Urban Municipality of Koper and prescribing its territorial boundaries. The initiators claim this to be a political formation consisting of 106 communities. In their opinion, the territorial boundaries of the Urban Municipality of Koper have not been prescribed in accordance with the Constitution, because the referendum concerning the establishing of the Koper Municipality was carried out in the area which was found to be contrary to the Constitution by the corresponding decision of the Constitutional Court. They also consider that the area of the Urban Municipality of Koper consists of communities which are not interrelated and do not constitute a territorial unit which would allow the establishing of a network of interpersonal and neighbourly relationships and the necessary awareness of belonging to the municipality, which is claimed to be a condition to be considered in prescribing the territorial boundaries of a municipality.
 
In the opinion of the initiators, clause 2 of Article 3 of the Act is also not in conformity with Articles 5 and 6 of the Act on Amendments and Supplements to the Local Self-Government Act (Official Gazette of the Republic of Slovenia, no. 57/94), since the Urban Municipality of Koper is not a dense agglomeration or a group of agglomerations interconnected to form a unified spacial organism.
 
Marjan Dvornik from Novo Mesto in his initiative, which was filed on 25 October 1994, disputes the constitutionality of clause 8 of Article 3 of the above mentioned Act, which establishes the Urban Municipality of Novo Mesto and prescribes its territorial boundaries. He claims that such geographically over-large municipality is not in conformity with the Constitution, and also that such urban municipality is also not in conformity with Article 16 of the LSGA, which defines urban municipality as a dense agglomeration or a group of agglomerations interconnected to form a unified spacial organism and the outskirts of the town or city linked with the town or city by daily migrations of the population. As an example of inconsistency in the formation of the said urban municipality he invokes the case of the communities of Dolenjske Toplice and žužemberk, which are, geographically, quite far away from the town. He further states that the result of the referendum is another evidence of the fact that the inhabitants of Novo Mesto have decided against a big municipality.
 
Dr. Julij Tittl and other initiators from Koper also dispute Article 5 of the Act, which is in their opinion not in conformity with Article 64 of the Constitution for granting, from land-use point of view, excessive rights to the Italian national community whose members are claimed by the initiators to live only in 13 communities out of 106 comprised in the new Urban Municipality of Koper. Having regard to Article 5 of the Local Self-Government Act (Official Gazette of the Republic of Slovenia, no. 72/93), the areas populated by members of the Italian and Hungarian national communities should in the opinion of the initiators be considered to be municipalities sui generis, which must be organized exclusively in the areas populated by more than one nationality. In the reference with this section of the initiative, the Constitutional Court has decided to separately decide on constitutionality of Article 5 of the Act.
 
A - II
 
The National Assembly replied to all the initiatives on 26 October 1994. In its reply it states that it follows already from the reasons for the proposal of the Act that, in specifying territorial boundaries of urban municipalities, the proposer has taken into consideration the results of referendums held in connection with the establishing of municipalities, technical specifications, and amendments and supplements to the Local Self-Government Act, which prescribed new conditions in connection with the establishing of ordinary and urban municipalities. It states that the proposer of the Act has also taken into consideration the decisions of the Constitutional Court referring to the Ordinance on determination of referendum areas and to the LSGA.
 
In reference with the taking into consideration of the will of inhabitants concerning the establishing of a municipality, as expressed at a referendum, the National Assembly states that the voting at a referendum was carried out on the basis of the Ordinance issued by the National Assembly on the basis of then applicable criteria of Article 13 of the LSGA. As the Constitutional Court abrogated Article 13 of the said Act, as well as paragraphs 1 and 2 of Article 14 thereof, the National Assembly adopted amendments and supplements to the LSGA, by which it redefined the conditions applying to the establishing of ordinary and urban municipalities. Nevertheless, the referendum results are claimed by the proposer of the Act to have been taken into consideration in as far as possible. The proposer also took as a starting point a judgement, according to which, at the referendum, the inhabitants have in the majority rejected the model of 340 municipalities having been proposed by the National Assembly, and that the so expressed will could be understood also in the sense that the powers of the state and those of local self-government bodies should be clearly delimited, that the system of financing the new municipalities should be established and that the conditions for acquisition of special status should be specified. In this connection, the proposer supposedly took into consideration the technical specifications and the new conditions having been enacted with the amendments and supplements to the LSGA.
 
The National Assembly considers that, having regard to the decision of the Constitutional Court (U-I-144/94), from which it follows that the referendums which were carried out do not have any binding effect but are only of consultative character, the National Assembly was entitled itself to evaluate referendum results and to take them into consideration, after careful consideration, in the process of passing the Act both with respect to the whole concept and to individual solution actually adopted in the formation of new municipalities. The degree to which the so expressed will is taken into consideration, and in what combinations, having regard to existing technical specifications and the conditions newly prescribed by the LSGA, is in the opinion of the National Assembly a matter of general as well as specific evaluation in particular cases. In any case, the National Assembly is of the opinion that it was not obliged to base such consequences as were prescribed in the original provisions of the LSGA on referendum results.
 
In the opinion of the National Assembly, all of the foregoing justifies the conclusion, that, in the said actual and legal circumstances, the legislator was entitled on the basis of its own assessment, to a greater or lesser degree and in a general or specific manner, to take into consideration the will of the people expressed at referendums, which is why there are no justified reasons for reproaching it to have acted unconstitutionally. In this connection, it points out that it was forced to act in the above manner because of time-related circumstances - to make possible the local elections and the constituting of new municipalities before the expiry of the time period provided for in the Enabling Statute. In doing so, it was guided by the thought that the existing statutory provisions grant to inhabitants of individual communities and municipalities a possibility at any time to decide for another municipality under the conditions and in a manner specified in the LSGA.
 
In its reply, the National Assembly also invokes separate opinions, which were in the minority and were stated at the meeting of the Local Self-Government Committee on 26 October 1994. In them it is stated that:
 
- the forming and establishing of municipalities on municipal areas where prior referendum was not held and where the will of the population was not ascertained in accordance with Article 139 of the Constitution is controversial from the point of view of constitutional jurisprudence;
 
- the forming and establishing of municipalities which have been formed, in the territorial sense, in violation of the criteria applying to an urban municipality is controversial from the point of view of constitutional jurisprudence; - in deciding on territorial boundaries of municipalities, constitutional and statutory principles on protection and exercising of special rights of national communities, as well as the agreement between Slovenia and Hungary, have not been observed concerning the regulating of the rights of minorities.
 
In the process of adjudication the Constitutional Court also examined the opinion of the Government which the latter sent in reference with the initiatives for evaluation of constitutionality of Articles 2 and 3 of the Act to the National Assembly on 25 and 26 October 1994, and to the Constitutional Court on 28 October 1994.
 
B - I.
 
The Constitutional Court considered all applications, even those addressing the matter in another manner, to be, from the point of view of their content, initiatives. For the requests under sub-paragraph 7 of paragraph 1 of Article 23 of the Law on the Constitutional Court (Official Gazette of the Republic of Slovenia, no. 15/94) are only be allowed to be filed by representative bodies of the new local government system established in accordance with the Constitution. Also considered to be initiatives by the Constitutional Court were applications by two Municipal Assemblies. The standing required to be satisfied for filing of initiatives by these bodies or their representatives, as well as by individual citizens, had necessarily to be recognised, since such standing is recognised to any inhabitant of a controversial area. The requirement of standing, however, was not recognized in reference with political parties, because the disputed provisions of the Act do not interfere directly with their rights, their standing and their legal status.
 
On the basis of accepted initiatives, and having established that the conditions specified in paragraph 4 of Article 26 of the Law on the Constitutional Court were fulfilled, the Constitutional Court immediately proceeded with adjudication concerning the matter proper.
 
B - II.
 
The Constitutional Court first evaluated the initiatives in which it was claimed that the Act was in conflict with paragraphs 2 and 3 of Articles 139 of the Constitution, for failure to take into consideration the interest and the will of the inhabitants ascertained at a referendum, as well as the opinions of municipalities and local communities.
 
The Constitution provides that a municipality may comprise a single community or a number of communities whose inhabitants are bound together by common needs and interests. 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 area affected. The territorial boundaries of a municipality shall be such as are prescribed by statute.
 
The Constitutional Court finds that the requirement under paragraph 3 of Article 139 of the Constitution, that a municipality may be established by statute following a vote in favour of its establishment at a referendum was in the process of establishing the municipalities satisfied. The Act on Referendum Concerning the Establishing of Municipalities (Official Gazette of the Republic of Slovenia, no. 5/94) provides in Article 3 that the inhabitants of a community or a number of communities which are bound together by common needs and interests shall at their meetings prepare a proposal concerning the area to be defined as the referendum area for the purpose of ascertaining the will of the inhabitants concerning the establishing of the municipality. On this basis, and taking into consideration the will expressed by the people, the National Assembly defined as much as 340 referendum areas, which had mainly been proposed by inhabitants of local communities at their meetings. But the proposals for formation of the so proposed referendum areas for establishing the municipalities were subsequently not confirmed at the referendums in many cases.
 
The Constitutional Court took up a position already in its decision no. U-I-85/94, according to which the referendum areas defined on the basis of the Ordinance on determination of referendum areas for the establishment of municipalities (Official Gazette of the Republic of Slovenia, no. 22/94, hereinafter: "Ordinance") do not imply that this is the final decision concerning the territorial boundaries of new municipalities, because such final decision will only be provided by statute passed on the basis of such referendums as have been carried out. With Article 13 of the LSGA, the National Assembly undertook by itself, without being bound to do so by the Constitution, to prescribe territorial boundaries of municipalities in accordance with the will expressed by the inhabitants who have voted at the referendum. The Act on Amendments and Supplements to the LSGA (Official Gazette of the Republic of Slovenia, no. 57/94) abrogated this provision, and with respect to the consideration of the will of the people expressed at the referendum the Constitutional Court was in the process of passing the Act bound by the Constitution only. The referendums which were carried out at particular referendum areas, then, do not bind the National Assembly so as to prevent it from prescribing a different division of the national territory by statute from the one willed by the inhabitants of individual referendum areas. For referendums in the sense of Article 139 of the Constitution express such will of the inhabitants of a particular territory as is not necessarily in harmony with the interests of adjacent territories and wider public interests, which must be taken into consideration by the legislator in prescribing such territorial division of the country as will allow not only the implementation of local self-government but also the implementation of those administrative tasks of the State which will be performed by the latter through municipalities and the powers of the State vested in them. This is why an investigative referendum is provided for in the Constitution, which has left it to the legislator to prescribe the definitive area of a municipality. This is why the will of the people as expressed at a referendum does not bind the legislator in prescribing the territorial area of a municipality absolutely or unconditionally.
 
With respect to the question of the referendum will as binding upon the National Assembly, the Constitutional Court has already decided in its decision U-I-85/94, but additionally points out that absolute duty to observe the will as expressed at a referendum could present an obstacle or even barrier to the execution of the duty of the National Assembly after the expiry of the period set for harmonization of legislation with the Constitution to establish municipalities and prescribe their territorial boundaries, thus making possible for the exercise of the constitutional right to local self-government to be started. For the binding force of referendum results would lead to long-lasting "negotiations" concerning territorial division of the national territory into municipalities. And this division is a precondition for establishing state authorities on the one hand and local self- government on the other on the basis of constitutional principles of Articles 1, 2, 3 and 9 of the Constitution.
 
But exceeding of constitutional authorizations could take place, if the National Assembly failed to establish municipalities in an area which fulfils the constitutional and statutory conditions and whose inhabitants have voted in favour of the establishing of their own municipality. In the opinion of the Constitutional Court, the National Assembly would in such a case have to take into consideration whether the remainder of the area fulfils the conditions applying to a municipality, in the event that such area could not be included in the area of some other municipality for geographical, economic or other justified reasons.
 
B - III.
 
In 34 initiatives, the initiators request the abrogation of those statutory provisions by which an ordinary or urban municipality was established, but whose part should have been established as an independent municipality in the opinion of the initiators.
 
In this connection, the initiators make reference to:
 
- referendum results by which the will of the majority of inhabitants of a particular area to establish a municipality on that area was confirmed,
 
- the capacity of the future municipality to satisfy the needs and interests of its inhabitants and to fulfil other tasks;
 
- the existence of geographical, border area, national, historic or economic reasons which allowed that in the requested municipality the number of inhabitants could exceptionally be less than 5000, and/or
 
- arbitrariness of the legislator in the application of criteria and recognition of conditions for establishment of municipalities, as the result of which the inhabitants of an area which was not established as an independent municipality, although it should have been in the opinion of the initiators, were at a disadvantage in comparison with the inhabitants of the areas which were not established as independent municipalities although they fulfilled the statutory conditions set for an independent municipality to an equal, or even lesser degree.
 
The Constitutional Court finds that at least one third of the established municipalities fail to reach the minimum allowed number of inhabitants (5000) prescribed by the LSGA. Further, it finds that the geographical, border area, national, historic or economic reasons which justify the establishing of a municipality with less than 5000 inhabitants are not an exception but are characteristic of a considerable number of the municipalities which have already been established, as well as of the areas which are claimed by initiators to fulfil the conditions required to establish an independent municipality although their population does not reach 5000 persons of more. These facts were evaluated with respect to the constitutional concept of ordinary and urban municipalities as local self-government communities.
 
The Constitution authorizes the legislator to establish municipalities by statute and to prescribe their territorial boundaries. With the LSGA, the National Assembly has prescribed the conditions applying to the establishing of a municipality and has obliged itself in the process of their establishing to consider them as a whole. The criterion of the number of inhabitants, which allows for exceptions, does not apply absolutely but relatively, which is why it should be taken into consideration within the framework of the totality of conditions applying to the establishing of a municipality, as well as on the basis of the constitutional concept of municipality as the local self-government community.
 
But it is for the National Assembly to decide whether to establish a municipality in a particular area on the basis of the newly introduced Article 13.a of the Act, which allows the establishing of a municipality also in an area with less than 5000 inhabitants, whenever the reasons specified in the said Article (geographical, border area, national, historic or economic) are given. In such cases, claims as to unconstitutionality in reference with the establishing of a municipality are bound to be unsuccessful. For it is constitutionally admissible for the National Assembly not to have adhered strictly to the conditions relating the number of inhabitants, but in proportion to the reasons which justified the establishing of municipalities with less than 5000 inhabitants.
 
However, in the application of the criteria set by the National Assembly by itself, the latter may not act in arbitrary manner, by treating in reference with the establishing of municipalities differently the same kind of objective situations and, on the other hand, by treating equally different actual statuses. Further, the National Assembly must take into consideration the principle of proportionality and will in a concrete case of establishment of a municipality - to achieve the ultimate goal, which is to realize the constitutional concept of local self-government - apply such means as will be suitable to this goal, and will ponder the importance, functionality and purposefulness of individual statutory conditions in the framework of their totality. The National Assembly should act consistently and should treat equally the requests of inhabitants from all areas for the formation of a municipality in such an area.
 
This finding applies in particular to the requests for establishing independent municipalities in areas:
 
- which do not depart from the constitutional concept of municipality,
 
- which are capable of satisfying the needs and interests of its inhabitants and of fulfilling other tasks under statute,
 
- which, while failing to reach the number of 5000 inhabitants, nevertheless reach with respect to this criterion the average size of those municipalities which have already been established by statute and which also fail to satisfy the numerical criterion,
 
- where any of the statutory reasons which justify the establishing of a municipality with less than 5000 inhabitants exists,
 
in particular if the majority of the inhabitants have voted in favour of the establishment of an independent municipality at a referendum.
 
On the basis of the information included in the initiatives, the Constitutional Court identified in this respect a few cases of obvious arbitrariness, where independent municipalities were not established although the same criteria were satisfied as in the case of municipalities which were established.
 
B - IV.
 
In a smaller number of initiatives submitted to the Constitutional Court, for example concerning the establishing of the Osilnica Municipality and the Sveti Jurij Municipality, it was expressly proposed that the Constitutional Court should evaluate the establishing of municipalities as being unconstitutional and in conflict with the LSGA, for supposed failure of such municipalities to satisfy the conditions required for establishing a municipality. The Government in its opinions states that it did not insists on municipalities such as Osilnica and Sveti Jurij, and that this was done by deputies of the National Assembly through amendments. It also adds that in these, as well as in some other cases (Zavrč, Juršinci, Dornava) the municipalities which were established failed to satisfy all of the eight substantial conditions prescribed by statute for establishing a municipality.
 
In evaluating the Act, the Constitutional Court is bound by the Constitution and its concept of municipality. Naturally, the Court must evaluate from the point of view of equality and the state governed by the rule of law whether in establishing the municipalities the National Assembly applied also in these cases such criteria as it had prescribed for itself with respect to the establishment of municipalities as implementing criteria for the constitutional concept of municipality equally for all cases, or whether it departed from such criteria in an arbitrary manner. After evaluating this, the Constitutional Court also finds that in connection with the establishing of municipalities the substantial conditions of Article 13 of the LSGA, which were obligatory for the National Assembly, regardless of the fact that the relationship between two statutes was concerned, were not used in an equal manner.
 
But the principle of the state governed by the rule of law demands that the legislator should be guided by such rules as have been determined by himself. Comparable communities with comparable conditions should be treated in a manner which is not arbitrary. In conflict with the Constitution, then, are the clauses of Article 2 of the Act by which such municipalities have been established as fail to fulfil the constitutional and statutory conditions prescribed by the National Assembly as substantial conditions in the LSGA.
 
B - V.
 
1. To evaluate the constitutionality of clause 2 (Koper) and clause 8 (Novo Mesto) of Article 3 of the LSGA, which refer to the establishing of eleven urban municipalities (Celje, Koper, Kranj, Ljubljana, Maribor, Murska Sobota, Nova Gorica, Novo mesto, Ptuj, Slovenj Gradec and Velenje), it was first necessary to clarify the question of relationship between the constitutional and statutory concept of urban municipality on the one hand, and between this concept and the establishing of urban municipalities in the areas specified by the enabling statute.
 
2. In accordance with the authorizations granted by the Constitution to the National Assembly, the latter may prescribe a procedure for, and the conditions to be fulfilled by a town or city to attain the status of an urban municipality. Comparison between paragraph 1 of Article 141 of the Constitution and Article 16 (amended and supplemented) of the LSGA reveals that the legislator acted on the basis and within the framework of such constitutional authorization.
 
The constitutional notion of "town and city" which may attain the status of an "urban municipality" was given concrete expression by the notions of "the area of a town or city" coinciding with the "urban municipality". In accordance with the corresponding systemic law (LSGA), one or more communities may be located in the area of a town or city.
 
Regardless of the number of communities included in it, an urban municipality, or the "entire area of a town or city" (Article 16 of the LSGA) must be:
 
- a densely populated agglomeration,
 
- interconnected to form a unified spacial organism,
 
- connected with the outskirts, and
 
- interconnected by daily migrations of the population.
 
Grammatical interpretation of Article 16 of the LSGA does not give a clear answer to the question of whether the condition of "interconnection on the basis of daily migrations of the population" refers to the "urban municipality" or to the "outskirts". In both cases "daily migrations" are not a condition which would independently define either the "area of an urban municipality" or the "outskirts", since in the territory of the Slovenian State experience has also shown that areas of daily migrations are greater than the areas of Slovenian towns and cities, regardless of how we define the areas of such towns or cities.
 
This is why "interconnection on the basis of daily migrations of the population" is just an additional condition in the context of all other statutory conditions applying to the establishing of an urban municipality, which potentially narrows the notion of "outskirts" and possibly also the notion of the area of an urban municipality. In as far as a certain area is not connected with a town or city on the basis of daily migrations, it can not be considered to be an "urban" area, even if other conditions should exist, and there can be no territorial basis for the urban municipality to be established.
 
Another condition for a town or city to attain the status of an urban municipality is the number of inhabitants (not less than 20 thousand) and the number of jobs (not less than 15 thousand, of which at least half in service sector, health and education activities); paragraph 4 of Article 16 of the LSGA).
 
The Act also differentiates between the notion of "urban area" (or "town or city") and its "gravitational area", and establishes the necessary functional links between the two: a town or city may attain the status of an urban municipality if "it is the geographical, economic and cultural centre of its gravitational area."
 
Finally, for a town or city to attain the status of an urban municipality, it must fulfil eight conditions applying to the establishing of a municipality (Article 13 of the LSGA), plus nine more conditions applying to the establishing of an urban municipality (Article 16.a of the same Act).
 
Having regard to Article 141 of the Constitution, urban municipalities cannot be interpreted in any other way than in the sense of Article 15.a of the LSGA, by which a town or city is defined as a greater urban community which is different from other communities by reason of its size, economic structure, population density, number of inhabitants and historic development. Paragraph 2 of Article 16 of the said Act should thus be understood as an additional criterion, which must be fulfilled by a town or city as defined in Article 15.a, or a relevant urban area, to be able to attain the status of an urban municipality.
 
3. For the purpose of evaluation of constitutionality of the disputed clauses of Article 3 of the Act, the Constitutional Court also examined more recent expert studies carried out in particular for the needs of the Government Agency on Local Self-Government Reform, and arguments of historical and comparative nature in international context.
 
a) Until 1955, in the territory of former Yugoslavia and, consequently, in the territory of the Slovenian State of today, towns and cities also existed as self-governing territorial units of the country. The general law on people's committees of 1952 provided that all towns and cities except for the biggest had the status of urban municipalities comprised in a district. This system was abolished by the introduction of the municipal system, by which from 1955 onwards all rural and urban municipalities were made equal with respect to their position, rights and powers. The current system under the LSGA is comparable with the system in existence prior to 1955, which had still been built upon the tradition of local self-government in Slovenia and which was interrupted with the introduction of the communal system.
 
b) The constitutional concept of municipality as the basic unit of the local self-government system is founded on the existence of a local area comprising a single or a number of communities whose inhabitants are bound together by common needs and interests. In particular as regards urban municipalities, the LSGA provides that they shall be established to ensure uniform land use and urban planning, the satisfying of the requirements of the municipality and development planning.
 
Thus, an urban municipality is established so that its inhabitants could take part in a purposeful and functional manner in the administration of local matters of public character in the area of a town or city as specific local urban communities. Inclusion of local communities which do not belong to the urban part of a town or city would be contrary not only to functional but also to democratic principles of local self-government. On the one hand, it would hinder purposeful, functional and democratic operation of local- government system in the local communities adjacent to a town or city and representing a specific substratum of corresponding municipalities. On the other hand, it would allow the operation of the system of local self-government, for the same reasons (economic, functional and democratic), in the area of a town or city as a specific and functionally integrated urban community.
 
c) In interpreting the partly unclear text of the new paragraph 2 of Article 16 of the LSGA, the Constitutional Court used as support not only the before mentioned grammatical interpretation but also the materials which had been submitted to the National Assembly on the occasion of adoption of the said provision. From the explanatory section to the text of amendments, which were submitted to the National Assembly by the Government on 13 September 1994, it follows that the above mentioned text of paragraph 2 of Article 16 of the LSGA was justified by the Government by the fact that the area of an urban municipality consisted of a town or city (these are defined in the new Article 15.a of LSGA) and the suburbs (according to the text of the LSGA: the "outskirts"). In accordance with the said grounds of the Government, the suburbs represent an area which can not exist as an independent "category" (local self-government body). On the one hand, this means that a suburban area which fulfils the conditions required to establish an independent municipality can not be included in an urban municipality and, on the other hand, that a certain suburban area which fails to satisfy all (of the following) criteria required for inclusion in an urban municipality can be included in an urban municipality when such an area does not by itself fulfil the conditions required to establish an independent municipality.
 
When proposing the adoption of the present paragraph 2 of Article 16 of the LSGA, the above mentioned criteria for determining the external perimeter of an urban municipality were listed by the Government (cumulatively) as follows: - continuously built-up area (uninterrupted built-up area), - construction land,
 
- high population density (as a rule more than 300 inhabitants/km2),
 
- population growth rate higher than the average as established between two population censuses (it should be in excess of natural growth rate),
 
- lower share of rural population than average,
 
- increased share of daily migrants (not less than 1000) coming from adjacent suburban areas to the town or city.
 
4.a) The disputed clause 2 of Article 3 of the Act deals with the establishing of the Urban Municipality of Koper and the prescribing of its territorial boundaries, which do not in any way depart from the referendum area for the establishment of the municipality of Koper. This referendum area was prescribed by the National Assembly in clause 73 of Section I of the Ordinance on determination of referendum areas for the establishment of municipalities (Official Gazette of the Republic of Slovenia, no. 22/94).
 
This provision of the said Ordinance was abrogated by the Constitutional Court by its decision no. U-I-90/94 of 20 May 1994. In the said decision the Constitutional Court established that by its territorial scope, the number of communities and inhabitants, and by the resulting internal heterogeneity, the area of the Koper Municipality determined by the corresponding Ordinance departed so substantially and evidently from the concept of municipality as defined in the Constitution that it failed to correspond to an area within which the establishment of a municipality would be possible.
 
As the area of the Urban Municipality of Koper, which was established on the basis of the disputed clause 2 of Article 3 of the Act does not in any way differ from the initial referendum area for the establishment of the municipality of Koper, the Constitutional Court finds that clause 2 of Article 3 of the Act is not in conformity with the Constitution. In this connection the Constitutional Court has made reference to the reasons stated by it in connection with the planned area of the Koper Municipality already in its decision no. U-I- 90/94 and, considering that the said Ordinance provided for the establishment of a municipality and that an urban municipality was established on the basis of the disputed statutory provision, has also established the following.
 
With the above mentioned decision no. U-I-90/94, the Constitutional Court established that the so defined area of the Koper Municipality was also not in conformity with the constitutional and statutory concepts of urban municipality in force in that period. This position can not be changed by the fact that the issuing of the said decision was followed by the passing of amendments and supplements to the LSGA (Official Gazette of the Republic of Slovenia, no. 57/94), by which in Article 16 paragraph 2 was additionally introduced, in which the definition of an urban municipality was provided.
 
The Urban Municipality of Koper as formed by the disputed statutory provision also fails to satisfy the criteria specified in paragraph 2 of Article 16 of the LSGA.
 
As a rule, an rural municipality may not comprise rural communities, and it should also be taken into consideration that the urban municipality is the basic territorial unit in which the implementation of the system of local self- government must be ensured. The legislator may only depart from such determination of an area as will still ensure territorial integration on the basis of which a network of interpersonal and neighbourly relationships and the necessary awareness of belonging to the municipality (in this case to an urban municipality) will be established to the extent of this being necessary because of the special nature of the tasks and problems of an urban municipality as specified in paragraph 1 of Article 16 of the LSGA.
 
b) All of the foregoing in reference with the area of the Urban Municipality of Koper also applies in equal degree to the area of the Urban Municipality of Novo mesto. By its size and types of communities included in it, this area also departs substantially from the concept of ordinary and urban municipalities as defined by the Constitution and as specified in greater detail by statute on the basis of the provision of paragraph 1 of Article 141 of the Constitution. In this connection it is obvious that the communities mentioned by the initiator do not belong to the urban municipality either on the basis of historical or functional criteria.
 
c) Other provisions of Article 3 of the Act by which other urban municipalities were established were not disputed before the Constitutional Court. From the reply of the Government the Constitutional Court could conclude that the fulfilment of the conditions applying to the establishing of an urban municipality by some other areas was questionable as well.
 
Thus, the Government expressly states that the Urban Municipality of Slovenj Gradec fails to satisfy the condition regarding the number of inhabitants, the number of jobs and the structure of the latter. From the materials of the National Assembly and on the basis of the generally known facts the Constitutional Court established that it was also extremely questionable whether all urban municipalities fulfilled the additional conditions specified cumulatively in Article 16.a of the LSGA. After weighing the constitutional assets affected, the Constitutional Court decided also in the case of urban municipalities not to evaluate, on the basis of the provision of Article 30 of the Law on the Constitutional Court, whether all urban municipalities were formed in accordance with the Constitution. It notes, however, that the National Assembly will be allowed to take away the status of urban municipality from those local communities which do not satisfy the criteria prescribed by the Constitution and statue.
 
B - VI.
 
1. The Constitutional Court found as unconstitutional not only each individual provision of Articles 2 and 3 of the Act which was expressly and directly in conflict with the Constitution but also both of the disputed Articles in their entirety, since the remedying of unconstitutionality of individual clauses of the disputed Articles, or even of specific sections of such clauses, would also affect the areas of other ordinary and urban municipalities whose establishment was constitutionally uncontroversial. This is why, pending final and comprehensive introduction of such ordinary and urban municipalities as will be in conformity with the Constitution, the current system of municipalities, formed as it is, can not be considered as being in full harmony with the Constitution.
 
In spite of non-conformity with the Constitution having been identified, the Constitutional Court decided not to abrogate individual clauses of Articles 2 and 3 of the Act but to find both of the disputed Articles to be in conflict with the Constitution. In doing so it was guided primarily by the following two reasons: Such transformation into new self- governing municipalities of former municipalities, which were not in conformity with the new concept of local self- government, as would be restricted only to specific areas, while other areas would require further adjustments, would imply that, with respect to local self-government the Constitution would not be implemented concurrently in the whole of Slovenia, and this would be contrary to the principles of the state governed by the rule of law. And concurrent starting with the implementation of local self- government is also urgently required to make possible concurrent transfer of state functions to municipalities, and because of enactment of regional legislation, which will lay new foundations for certain subsystems of the society in the sphere of public services.
 
2. The constitutional concept of local self-government includes not only the territorial aspect but others as well, primarily those relating to competencies and administration.
 
By pondering the assets which would be affected in controversial areas by such or other decision of the Constitutional Court, the latter established that abrogation of the Act would imply that in controversial areas elections of new bodies could not be carried out, while the expiry of the period, by which the term of office of current municipal bodies has been extended by the Enabling Statute, would create a legal void. Postponing of the formation of municipalities to a time after the expiry of the period having been extended by the Enabling Statute would be even less in conformity with the Constitution than immediate elections of municipal councils of municipalities which, while failing to be in full accord with the constitutional concept of local self-government, are still in greater agreement with such concept than former municipalities which originate in the system and concept of municipality as a commune.
 
The establishment of municipalities is the essential condition for the implementation of the system of local self-government in Slovenia. But the formation of municipalities, urban municipalities included, is a process in which, once established, the municipalities will continue to evolve in the direction of the most natural and functional units possible, naturally, subject to observation of statutory criteria.
 
However, the Constitutional Court considers that it is primarily for the legislator within the framework of his own competencies to decide how to use the statutory criteria for the establishment of municipalities proportionately and in a comprehensive manner, as well as within the framework of the constitutional concept of municipality, in such a way that the identified instances of unconstitutionality will be remedied in accordance with the reasons for this Decisions.
 
Upon the constituting of the newly established municipalities, single communities or a number of communities in one or several municipalities will be allowed, if fulfilling the conditions for establishing their own municipality, or if desiring to leave one municipality and join another, to initiate proceedings under Articles 14 or 15 of the LSGA, which make possible the exclusion of a portion of a municipality and its inclusion in another municipality, or the establishing of own municipality. Any such decision, for which voting in its favour at a referendum is required, will in accordance with the said Articles be approved by the National Assembly, if the decision will be in conformity with the constitutional concept and the conditions for the establishment of a municipality. This means that the National Assembly will only be able to approve a decision so made, for example on exclusion of a community from one municipality and its inclusion in another municipality, if, from the point of view of the "remainder" of the municipality and the "enlarged" municipality, such change will remain within the framework set in connection with the establishing of a municipality by the Constitution and statute.
 
3. On the basis of the foregoing the Constitutional Court considers that the conditions for the adoption of an ascertainment decision under Article 48 of the Law on the Constitutional Court have been fulfilled. In accordance with the said Article the Constitutional Court also set a time for abolishing the instances of non-conformity with the Constitution, which must be remedied by the National Assembly not later than six months prior to the announcement of the next local elections. The Constitutional Court decided to prescribe such period on the basis of the same reasons for which it was necessary to find the entire Act to be in conflict with the Constitution, as well as due to the complexity and difficulties involved in harmonization of the areas of ordinary and urban municipalities with the Constitution.
 
This Decision was made by the Constitutional Court on the basis of Article 48 of the Law on the Constitutional Court 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. Concerning paragraph 1 of the adjudication, the decision was reached with eight votes in its favour and one vote against it, and concerning paragraph 2 of the adjudication with six votes in its favour and three against it. The Judge Krivic voted against the entire adjudication and the judges Jambrek and šturm against its paragraph 2. A separate negative opinion will be prepared by the judge Krivic, a separate positive opinion by the judge Ude and a separate negative opinion concerning paragraph 2 of the adjudication by the judge Jambrek.
 
 
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:
Vitanje Local Community
Date of application:
06.10.1994
Date of decision:
09.11.1994
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is inconsistent with the Constitution/statute
Document:
AN00674