U-I-285/95

Reference no.:
U-I-285/95
Objavljeno:
Official Gazette of RS, No. 10/97 and OdlUS VI, 8 | 30.01.1997
ECLI:
ECLI:SI:USRS:1997:U.I.285.95
Act:
Šoštanj Municipality Charter (Official Paper of Šoštanj Municipality, No. 6/95), Article 49, Para. 2; Article 55, Subpara. 3.
Operative provisions:
Article 49, Para. 2 and Article 55, Subpara. 3 of Šoštanj Municipality Charter shall be abrogated.
Abstract:
Provisions of municipal charter according to which community members shall appoint the members of their Local Community Council, or just propose the appointment of the same, at the assembly of Local Community members and according to which these shall be approved by Municipal Council, are each in itself and all together in disagreement with the provisions of the Local Elections Act (Official Gazette of RS, Nos. 72/93, 7/94, 33/94 and 70/95) which determine and regulate the election of Local Community Council members, as well as with Articles 44 and 153 of the Constitution.
Password:
Temporary injunction.
Voting right.
Participation in the management of public affairs.
Harmony between legal acts.
Election of Local Community Council members, participation of community members, right to participation in decision-making.
Partial dissenting opinion of a Constitutional Court justice.
Concurring opinion of a Constitutional Court justice.
Dissenting opinion of a judge of the Constitutional Court.
Legal basis:
Constitution, Articles 43, 44, 153.
Local Elections Act (ZLV), Articles 2, 109.
Constitutional Court Act (ZUstS), Articles 30, 45.
Document in PDF:
The full text:
U-I-285/95
30 January 1997

D E C I S I O N

At the session of 30 January 1997 concerning the procedure for the evaluation of constitutionality and legality commenced on the initiative of Šoštanj Local Community, the Constitutional Court

d e c i d e d:

Article 49, Para. 2 and Article 55, Subpara. 3 of Šoštanj Municipality Charter (Official Paper of Šoštanj Municipality, No. 6/95) shall be abrogated.

R e a s o n i n g:

A.

1. Šoštanj Local Community through its Council represented by the chairman of the latter Matjaž Natek submitted an initiative for reviewing the constitutionality and legality of Article 49, Para. 2 of Šoštanj Municipality Charter, for it considered it to be in disagreement with Article 109 of the Local Elections Act (Official Gazette of RS, Nos. 72/93, 7/94, 33/94 and 70/95 - hereinafter: "the ZLV"), which determines that in connection with the election of members of Local Community Council the provisions of the Act applying to Municipal Council elections, that is, to elections by direct and secret ballot, should be used on mutatis mutandis basis.

2. The initiator also proposed the staying of implementation of the disputed provision pending final decision by the Constitutional Court.

3. With its ruling of 21 December 1995 the Constitutional Court accepted the initiative and followed the proposal.

4. The Municipal Council of Šoštanj Municipality did not reply to the initiative.

5. As Article 55, Subpara. 3 of Šoštanj Municipality Charter refers to the same subject matter and is intrinsically connected with the disputed provisions, the Constitutional Court in line with Article 30 of the Constitutional Court Act (Official Gazette of RS, No. 15/94) extended the review of legality and constitutionality to this provision as well.

B.

6. The ZLV in Article 2 inter alia provides that members of Local Community Councils shall be elected on the basis of general and equal voting right at free and direct election by secret ballot.

Section III of the same Act regulates in greater detail some questions relating to the election of members of Local Community Councils and provides in the revised Article 109 that for the said election the provisions of the Act on Municipal Council majority election shall be used on mutatis mutandis basis. The same Section also prescribes details concerning the time for calling the election, election bodies, candidacy and, in a subsidiary way, also concerning the number of LC Council members and the determination of electoral units.

7. The disputed provision of Article 49, Para. 2 of Šoštanj Municipality Charter, which prescribes that members shall not be elected by direct election but shall be appointed at the general assembly of the voters in the LC, is for this reason in disagreement with the ZLV. The disagreement is not only one of terminology but regards the subject matter and quality: for through election at the general assembly of community members it is impossible to ensure the qualities such as are prescribed by the ZLV. For it would be legally impossible to formulate the appointment in a way that would not diminish the right of the member of a Municipality or Local Community to take part in the management of public affairs as provided in Article 44 of the Constitution. The disputed provision excludes the possibility of implementation of rules concerning the election of members of LC Council in accordance with the ZLV. This is why it is in disagreement with the said Act, with Article 44 of the Constitution and with Article 153 of the latter which among other things provides that local government regulations must be in conformity with statutes.

8. The subsequent provision of Article 49, Para. 2 of the Charter, according to which the appointment of members of LC Council shall be approved by the Municipal Council, is connected with the first to such a degree that it cannot even exist without it. Taken in itself, it constitutes a still greater disagreement with the Constitution and statute as just described: for in a matter which the Act leaves entirely to community members to decide upon in as far as voters, it leaves it to a considerable and, in the negative sense, decisive degree, to someone else, namely, the Municipal Council, to decide the matter - contrary to the said Act and the characteristics and qualities of voting right as one of the constitutionally guaranteed human rights (Article 43 of the Constitution).

9. Article 55, Subpara. 3 of the Charter goes - in disagreement also with the first provision of Article 49, Para. 2 - even a step further in the above described infringements: for, according to it, on the occasion of their general assembly community members do not in fact even appoint the members of their Council (though such appointment is not final because subject to approval by the Municipal Council) but just propose such appointment. Formally in disagreement also with the previous disputed provision, this provision in fact sounds as a commentary to the preceding provision: for it reveals that by the disputed statutory arrangement the community member has been deprived of his right to (jointly) decide on who will be the members of the Council of his Local Community.

10. Thus, the said provisions had to be abrogated. Abrogation ab initio was not necessary, because their implementation had been stayed by a ruling having been passed by the Constitutional Court.

C.

11. This Decision was made on the basis of Articles 30 and 45 of the Constitutional Court Act by the Constitutional Court, composed of Justices: Dr. Tone Jerovšek, President, and Dr. Peter Jambrek, mag. Matevž Krivic, mag. Janez Snoj, Dr. Janez Šinkovec, Dr. Lovro Šturm, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M. Zupančič. The Decision was reached unanimously.


President of the Constitutional Court:
Dr. Tone Jerovšek
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
municipal regulation
Applicant:
Šoštanj Local Community
Date of application:
27.11.1995
Date of decision:
30.01.1997
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN01231