U-I-163/99

Reference no.:
U-I-163/99
Objavljeno:
Official Gazette RS, No. 59/99, Official Gazette RS, No. 80/99 and OdlUS VIII, 209 | 23.09.1999
ECLI:
ECLI:SI:USRS:1999:U.I.163.99
Act:
Act on the Calling of Regular Local Elections in Koper Urban Municipality (Official Gazette RS, No. 53/99) (ZRLVKP)
Operative provisions:
The Act on the Calling of Regular Local Elections in Koper Urban Municipality is in conformity with the Constitution.
Abstract:
The legal character of a decision reached by the Constitutional Court according to Art. 40.2 of the Constitutional Court Act (hereinafter: ZUstS) is different from the legal character of a decision on the constitutional review of a regulation. A constitutional-review interpretation by the Constitutional Court is binding on the legislature, which means that the latter is obliged to implement the Constitutional Court decision; otherwise, it is in violation of Art. 2 (the principles of a law-governed State) and Art. 3 of the Constitution (the principle of the separation of powers). The Constitutional Court as a rule does not carry out constitutional review, which is a power otherwise vested in it pursuant to Arts. 160 and 161 of the Constitution, by issuing decisions on the manner of implementing a law reached on the basis of the authority determined in Art. 40.2 of ZUstS. Thus, the legislature may change by statute the manner of implementing a law as determined by the Constitutional Court on the basis of Art. 40.2 of ZUstS.

The adoption of such a statute is not unconstitutional in itself. Only the manner of implementation embodied in such a statute can be unconstitutional, which could then be the subject of constitutional review if this is requested of the Constitutional Court.

The holding of elections to the bodies of a municipality whose territory has not yet been adjusted to meet the constitutional and statutory criteria is not in violation of the constitutional right to local self-government, which is based on Art. 9 of the Constitution, and which provides that the autonomy of local self-government in Slovenia is guaranteed. Status changes of a local community should not directly be connected with elections. Local elections would be unconstitutional if they were carried out in a manner that made it impossible for qualified voters to freely exercise their will and their equality with respect to exercising their right to vote. In contrast, local elections are not unconstitutional only because of the fact that during a certain period of time bodies of local communities have been elected on the municipal territory which is not completely in conformity with constitutional provisions.

The right of voters to be able to vote for representatives of local self-government at certain time intervals is not constitutionally determined in such a manner as to prescribe that elections must be precisely carried out at four-year intervals. The legislature could also determine a longer term of office for local self-government bodies. Nevertheless, due to the general principle of equality (Art. 14.2 of the Constitution), a Constitutional Court decision on extending the term of office of Koper Urban Municipality bodies could not postpone the local elections for an unlimited period of time. A longer postponement of local elections could lead to a situation in which the exercise of local self-government by citizens precisely in a manner consisting of periodic decisions to choose their representatives in local self-government bodies would be seriously be jeopardized. Thus, it is necessary that the periodic carrying out of elections be made possible, even if such is carried out in a municipality not established in a manner that meets all constitutional criteria. The principles of a State governed by the rule of law (Art. 2 of the Constitution) were not violated by the challenged Act, which was intended to establish the legal basis for the calling of local elections in Koper Urban Municipality.
Password:
Temporary injunction, statute.
Constitutional Court, the binding effect and finality of a decision.
Constitutional Court, the change of a Constitutional Court decision.
Local self-government, the establishment of a municipality, criteria.
Principle of a law-governed and social State.
Constitutional Court, relations to the legislature.
Legislature, the implementation of a Constitutional Court decision.
Local elections, the unconstitutionality of local elections.
Right to local self-government, the violation of the right to local self-government.
Status changes of a municipality and the carrying out of elections.
Manner of the implementation of Constitutional Court decisions, legal character.
Binding effect of a constitutional interpretation on the legislature.
Binding effect of the determination of the manner of the implementation of a law on the legislature.
Concurring opinion of a Constitutional Court judge.
Dissenting opinion of a Constitutional Court judge.
Legal basis:
Constitution, Arts. 2, 3.3, 9, 14, 87, 160, 161
Local Self-Government Act (ZLS), Art. 14
Local Elections Act (ZLV), Arts. 24, 26
Constitutional Court Act (ZUstS), Arts. 21, 40.2
Note:
In the reasons for its decision the Constitutional Court referred to its cases No. U-I-301/98, dated 17 September 1998 (DecCC,157), No. U-I-83/94, dated 14 July 1994 (DecCC III,89), No. U-I-158/94, dated 9 March 1995 (DecCC IV,20), No. U-I- 224/96, dated 22 May 1997 (DecCC VI,65), No. U-I-114/95, dated 7 December 1995 (DecCC IV,120), No. U-I-183/94, dated 9 November 1994 (DecCC III,122)
Document in PDF:
The full text:
U-I-163/99
23 September 1999

 
D E C I S I O N

At a session held on 23 September 1999 in proceedings to review constitutionality instituted by the petition of Alojz Gec from Hrvatini and others, the Constitutional Court
 
d e c i d e d:

The Act on the Calling of Regular Local Elections in Koper Urban Municipality (Official Gazette RS, No. 53/99) is in conformity with the Constitution.

R e a s o n s
 
A.

1. The petitioners challenge the entire Act on the Calling of Regular Local Elections in Koper Urban Municipality (hereinafter: ZRLVKP). They opined that the challenged statute was not in conformity with Art. 2 of the Constitution, which provides that Slovenia is a State governed by the rule of law.

Their constitutional right to participate in the management of public affairs in such local communities as established pursuant to the Constitution were also allegedly violated by the carrying out of regular elections in the territory of the present Koper Urban Municipality. They referred to Constitutional Court decisions Nos. U-I-90/94, U-I-183/94 and U-I-301/98, by which it was established that Koper Urban Municipality exceeded the territory of a town and the outskirts of the town, and thus that it had been established not only contrary to the constitutional scheme of an urban municipality but also to the constitutional scheme of a municipality in general. They emphasized that the challenged statute interfered with the basic rights of citizens of Slovenian Istria, who are by the present authorities of Koper Urban Municipality "misinformed, led astray by all possible means in order to be dissuaded, impeded and prevented from exercising their elementary rights relating to local self- government". The calling of elections only in one municipality is not allegedly an authority vested by statute in the President of the National Assembly, on the basis of Art. 87 of the Constitution. Pursuant to Art. 26.1 of the Local Elections Act (Official Gazette RS, No. 72/93 and following issues - hereinafter: ZLV), the President of the National Assembly is allegedly only empowered to call regular elections to municipal councils in all municipalities at the same time, and not only in a single municipality. The petitioners emphasized that the challenged statute "nullified" Constitutional Court decision No. U-I-301/98, by which the term of office of Koper Urban Municipality bodies had been extended until the assumption of office by the bodies of the new municipalities to be established in conformity with the Constitution. The petitioners did not consider the extension of the term of office of the present Koper Urban Municipality bodies to be an encroachment on their right to vote. During the extended term of office, Koper Urban Municipality bodies should cooperate with each other so that the constitutional non-conformity of Koper Urban Municipality established in Point 2 of the disposition of Constitutional Court decision No. U-I-301/98, is remedied. Furthermore, the petitioners stated that Art. 3 of the challenged statute changed the provision of Art. 4 of the Act on the Procedure for the Establishment of Municipalities and for the Determination of their Territories (Official Gazette RS, Nos. 44/96 and 56/98 - hereinafter: ZPUODO), which allows that the procedure for the establishment of municipalities and the determination or change of their territories is carried out only once in the period between two regular elections to municipal councils. In the petitioners' opinion, the challenged provision exempted from elections only Koper Urban Municipality, and thereby allegedly created an inadmissible, unsystematic and "truly anarchic" state of affairs.

2. The petitioners suggested the temporary suspension of the implementation of Art. 2 of the challenged statute, on the basis of which the President of the National Assembly was to call regular elections immediately after the coming into force of the challenged statute.

3. In the supplement of the petition, dated 1 September 1999, the petitioners suggested that the Constitutional Court consider the case at a public hearing, pursuant to Art. 35.2 of the Constitutional Court Act (Official Gazette RS, No. 15/94 - hereinafter: ZUstS). The petitioners opined that the National Assembly could implement the Constitutional Court decision and adopt appropriate amendments to the Act on the Establishment of Municipalities and the Determination of their Territories (Official Gazette RS, No. 60/94 - hereinafter: ZUODNO) regarding Koper Urban Municipality even before the expiration of the one- year time limit for making the territory of Koper Urban Municipality conform with the Constitution, that is, by 3 October 1999. They emphasized that the carrying out of regular elections to Koper Urban Municipality bodies was contrary to the principles of a State governed by the rule of law and signifies an encroachment on the right of their inhabitants to vote. In the petitioners' opinion, the right to elect the bodies of an unconstitutional, involuntarily and undemocratically formed local community cannot have "constitutional weight". In spite of the fact that the right to vote is a foundation of democracy, abuses may occur (for this purpose the petitioners listed historical examples). Thus, they opined that supervision of the activities of Koper Urban Municipality bodies was necessary and that only in such a manner would it be possible for the Constitutional Court decision to be implemented, the inhabitants insured their constitutional right to local self-government and local elections carried out.

4. On 13 September 1999, on the basis of the opinion of the Secretariat for Legislation and Legal Affairs, the National Assembly Committee for Internal Policy and the Judiciary replied to the petition under consideration. It opined that the challenged statute refers only to Point 3 of the disposition of Constitutional Court decision No. U-I-301/98, by which the Constitutional Court had extended the term of office of the present Koper Urban Municipality bodies. According to the Committee, the challenged statute does not affect the substantial obligation imposed on the National Assembly by the cited decision to make the territory of Koper Urban Municipality meet the constitutional and statutory criteria of an urban municipality. Thus, the substantive arguments of the petitioners concerning the establishment of new municipalities were allegedly unfounded since the challenged statute in no sense prevents the establishment of new municipalities, but even makes them possible to a greater extent. The right of the petitioners to participate in the management of public affairs was allegedly not violated by the challenged act, for elections embody one of the forms of exercising such. According to the opposing party, the challenged statute makes possible the repeated exercise of this right in conjunction with the human right to the universal and equal right to vote as determined in Art. 43 of the Constitution. It emphasized that the right to vote as a human right is exercised directly on the basis of the Constitution and that statutes prescribe only the system and technical rules for the carrying out of elections. In Decision No. U-I-301/98 the Constitutional Court allegedly created a conflict between the universal and equal right to vote and the constitutional right to local self-government thereby using the right to vote as a human right to determine the manner of implementing its decision "to support the exercise of the constitutional right to local self-government". According to the opposing party, the principles of a State governed by the rule of law were not violated by the challenged statute although one of the most important principles of a State governed by the rule of law is also the binding effect of the decisions of all courts. Pursuant to Articles 3, 5 and 87 of the Constitution, the National Assembly is empowered to regulate by statute the rights and obligations of citizens and other persons and, on this basis, to adopt proper statutes, also with regard to human rights, as set out in Arts. 15 and 16 of the Constitution. In the opposing party's opinion, the Constitutional Court decision could, in the substantive part relating to the adjustment of Koper Urban Municipality to conform with the Constitution, be implemented also in a manner such that elections in Koper Urban Municipality are carried out and the unnecessary conflict between the constitutional and human right thereby eliminated.

Replying to the petition, the opposing party emphasized that in reviewing the challenged statute it is necessary to consider that an act changing the territory of Koper Urban Municipality had been proposed (the proposed Act on the Amendment to ZUODNO - EPA 764 - II), which at the National Assembly session in June 1999 was not given enough support, and that, therefore, it was impossible for the Constitutional Court decision to be implemented within the specified time limit. The Committee stated that concerning the formation of new municipalities on the territory of Koper Urban Municipality, debates were taking place on the establishment of two municipalities (Dekani and Ankaran-Hrvatini). It enclosed with the reply the proposed Act on the Amendment to ZUODNO, dated 25 March 1999, which the Government had submitted to the National Assembly, and other legislative materials. From the mentioned documents it follows that the Government proposed that on the territory of Koper Urban Municipality a new municipality, Dekani, be established, however the proposal was not passed at the 14th session of the National Assembly on 10 June 1999 since a mandatory preliminary referendum had not been held before the beginning of the legislative debates.

B. - I.

5. The Constitutional Court suspended the implementation of Art. 2 of the challenged statute pending its final decision by Ruling No. U-I-163, dated 15 July 1999 (Official Gazette RS, No. 59/99), pursuant to Art. 39 of ZUstS.

6. The Constitutional Court accepted the petition and given that the conditions determined in Art. 26.4 of ZUstS were fulfilled it immediately proceeded to decide the merits of the case.

7. The Constitutional Court did not call a public hearing on the case under consideration as suggested by the petitioners, since the issues due to which the hearing was suggested were not considered relevant enough for reaching a decision in these proceedings.

B. - II.

8. By Decision No. U-I-301/98, dated 17 September 1998 (Official Gazette RS, No. 67/98 and DecCC VII, 157), the Constitutional Court established the non-conformity of Art. 3-2 of ZUODNO with the Constitution and established a one-year time limit for the National Assembly to remedy the established non-conformity.

Furthermore, on the basis of Art. 40.2 of ZUstS, the Constitutional Court established in Point 3 of the mentioned decision that: "The term of office of Koper Urban Municipality bodies are extended until the assumption of office by the bodies of the new municipalities to be established in conformity with Point 2 of this disposition." Following this decision the regular local elections called in Koper Urban Municipality for 22 November 1998 were not held. The National Assembly made it possible by means of the challenged statute to call local elections in Koper Urban Municipality even before the adjustment of ZUODNO to conform with the Constitution. Therefore, the legislature changed Point 3 of the disposition of the mentioned Constitutional Court decision, which is why in this case the Constitutional Court had to answer first the question whether the legislature had violated the constitutional principle of the separation of powers.

9. In Art. 3.2 the Constitution defines the principle of the separation of powers as being Government divided into legislative, executive and judicial branches. The Constitutional Court has often defined the contents of this principle in its decisions (Decision No. U-I-83/94, dated 14 July 1994, Official Gazette RS, No. 84/94 and DecCC III, 89; Decision No. U-I-158/94, dated 9 March 1995, Official Gazette RS, No. 18/95 and DecCC IV, 20; Decision No. U-I-224/96, dated 22 May 1997, Official Gazette RS, No. 36/97 and DecCC VI, 65).

In the system of the separation of powers the Constitutional Court is a body in the judicial branch. However, compared to other courts which perform judicial functions the Constitutional Court has special powers (Arts. 160 and 161 of the Constitution). It is the State body which reviews the constitutionality of the regulations of the legislative branch as well as the constitutionality and legality of the regulations of the executive branch. Thus, in the framework of its powers, in the most possible direct way, it enters into mutual relations with these bodies. From the position determined in the Constitution it follows that the Constitutional Court is granted the power to interpret constitutional provisions with binding legal effect; concerning this power the Constitutional Court is considered the "guardian of the Constitution". The legislature is bound by the interpretations of the Constitutional Court, which follows from the very foundation of the principle of the separation of powers. Therefore, the legislature must implement Constitutional Court decisions, otherwise it is in violation of Art. 2 of the Constitution (the principles of a State governed by the rule of law) and Art. 3.3 of the Constitution (the principle of the separation of powers). The Constitutional Court has often referred to such a duty of the legislature (first in Decision No. U-I-114/95, dated 7 December 1995, Official Gazette RS, No. 8/96 and DecCC IV, 120, and most recently in Ruling No. U-190/95, dated 15 July 1999 and in Decision No. U-I-114/98, dated 15 July 1999, Official Gazette RS, No. 61/99).

10. The provision of Art. 40.2 of ZUstS empowers the Constitutional Court to determine when necessary which body must implement a decision and in what manner. On the basis of this provision the Constitutional Court may, among other powers, temporarily regulate a transitory state of affairs until the legislature remedies the state of affairs to conform with the Constitutional Court decision. The provision of Art. 40.2 of ZUstS does not establish conditions which must be fulfilled for it to be applied, for its application is left to a case by case judgment by the Constitutional Court. The Constitutional Court may decide on the manner in which its decision must be implemented irrespective of the proposals of the participants in the proceedings. What is most important is that by a decision reached on such a basis the Constitutional Court does not necessarily interpret the Constitution and thereby, in this part, does not explicitly exercise constitutional review as empowered under Arts. 160 and 161 of the Constitution. This means that the legal character of a decision reached by the Constitutional Court pursuant to Art. 40.2 of ZUstS is different from the legal character of a decision relating to the constitutional review of regulations. Thus, the legislature may change by statute the manner of implementing a decision determined on the basis of Art. 40.2 of ZUstS. The adoption of such a statute is not in itself unconstitutional. Only the manner of implementation included in such a statute may be unconstitutional, which, however, should be the subject of a case by case constitutional review if it is requested of the Constitutional Court. Thus, the Constitutional Court had to evaluate also in this case whether the provisions of the challenged statute are in conformity with the Constitution.

B. - III.

11. The challenged statute would not conform with the Constitution if by it the National Assembly regulated a certain question contrary to the adopted constitutional interpretation.

The precedent character of Constitutional Court decisions in proceedings of constitutional review is also binding on the Constitutional Court itself. This means that the Constitutional Court must decide in substantially similar cases as a rule substantially the same way, however, when changed circumstances and the development of legal thought require different reasoning, such circumstances or arguments should as well be considered and on their basis a possible change in the reasons resulting in a different decision should be substantiated.

12. The reasoning which dictated reaching the Constitutional Court decision in Point 3 of Decision No. U-I-301/98 on the extension of the term of office of Koper Urban Municipality bodies are not especially mentioned in the reasoning for that decision. In Decision No. U-I-183/94, dated 9 November 1994 (Official Gazette RS, No. 73/94 and DecCC III,122), the Constitutional Court explicitly stated that the formation of municipalities is a process in which municipalities still remain after being established in so far as the process of becoming as natural and functional an entity as possible still continues.

In that Decision the Court further reasoned that it is in particular the duty of the legislature to make a judgment within the framework of its powers determining the application of the statutory criteria for establishing municipalities in the framework of the constitutional scheme on municipalities. When the Constitutional Court was substantiating the reasons for that decision, because of which it did not decide to annul the Act but only to establish its unconstitutionality, it specifically stated that the annulment would prevent the holding of elections to new bodies in the disputed territories. This would in particular signify that the simultaneous transformation of old municipalities and the simultaneous enforcement of the system of self-government on the territory of the entire country could not be carried out. Therefore, it determined that postponing the formation of municipalities would be "even less in conformity with the Constitution than the immediate election of a new municipal council, because even municipalities which do not entirely conform with the constitutional concept of local self- government, do conform more than the old municipalities which originate from the system of considering municipalities to be communes".

13. The then point of view of the unconstitutionality of elections in the old municipalities taken by the Constitutional Court cannot simply be transferred to the present circumstances. If this was done, to simplify, elections would be unconstitutional not only in the present Koper Urban Municipality but also in every municipality in which the same situation has developed by reason of the possible changes of statute until municipalities are established on territories in conformity with the Constitution. Such a reasoning would also lead in this case to the point of view that the legislature, by the challenged statute, had gone against the reasoning of the Constitutional Court due to which the Act could violate the Constitution. However, the matter concerns a different situation. The point of view of the unconstitutionality of the elections must be put into the then existing context of creating local self-government compared to the previous commune system.

And only in this context does it have constitutional significance. The right to local self-government is the right of inhabitants who live in a certain territory and who are connected with each other by common needs and interests to regulate local affairs by themselves. The right to local self- government is not defined in the Constitution as a human right, but as a constitutional right grounded on Art. 9 of the Constitution, which provides that the autonomy of local self- government in Slovenia shall be guaranteed. When local self- government is established the system of municipalities does not preserve the status quo, for it is possible to envisage such or different changes in their status which would also refer to the territory of municipalities. This is one of the reasons why ZLV envisages early elections to local community bodies. This is the reason why such changes in local self-government should not directly be connected with elections. These would be unconstitutional if held in a manner such that the free exercise of the will of the persons entitled to vote and equality in exercising the right to vote are made impossible. However, they would not be unconstitutional only by reason of the fact that during a certain time period local community bodies are formed on the territory of a municipality that is not entirely in conformity with constitutional provisions. Thus, the assertions by the petitioners that the carrying out of elections to the bodies of a municipality which has not yet been adjusted to meet the constitutional and statutory criteria entails a violation of the right to local self-government, are not well founded.

14. From the aforementioned reasoning it follows that the circumstances developed following the issuance of Decision No. U-I-183/94 were completely different from the circumstances that existed at the issuance of Decision No. U-I-301/98. At the issuance of the latter, the first phase of establishing local self-government had already been completed. The Constitutional Court could have even reacted more strongly following the legislature's violations and annulled the then challenged Act.

The effect of such a decision would have been, until the adoption of new regulations in conformity with the Constitution, far more radical than the effect temporarily caused by Point 3 of the disposition of Decision No. U-I-301/98. However, the Constitutional Court did not opt for such an action, for it could reasonably have expected that the legislature would implement the Constitutional Court decision and adjust ZUODNO so that in the territory of the present Koper Urban Municipality municipalities in conformity with the Constitution would be established. In exercising its powers the Constitutional Court cannot proceed from the assumption that other State bodies will not fulfil their constitutional obligations. By Decision No. U- I-301/98 the Constitutional Court did not postpone the elections because it considered them to be unconstitutional. Obviously the intention of the Constitutional Court was to enable all the empowered agencies to form the territories of new municipalities. The time limit of one year that the Court determined for such adjustment was undoubtedly the time necessary for carrying out the procedure determined by ZUODNO for establishing municipalities. The procedure for establishing municipalities may only be commenced by the National Assembly, which must before the beginning of legislative debates carry out a preliminary referendum (i.e., according to Article 14, it is necessary to determine referendum territories and call a referendum for establishing the will of people). Regarding the repeated determination of the unconstitutionality of Koper Urban Municipality, the National Assembly should immediately have commenced the procedure for establishing municipalities or for changing its territory. Therefore, the carrying out of local elections together with the procedure commenced to change the territory of a municipality would neither be reasonable nor rational, or could slow down the procedure for changing its territory.

15. Furthermore, the circumstances were changed by the rejection of the amendment to ZUODNO at the National Assembly's session on 10 June 1999, for a preliminary referendum was not carried out pursuant to Art. 14 of ZLS. From the reasoning of the bill of the challenged statute it follows that there does not exist a real possibility for the territory of Koper Urban Municipality to be made to conform with the Constitution in the time limit determined by the Constitutional Court decision. Concerning the procedures needed to be carried out in order to transform a municipality, also in the opinion of the Constitutional Court, such an evaluation of the legislature was correct. Thus, the assertions by the petitioners that the legislature decided in advance not to implement the Constitutional Court decision are not well founded. Therefore, the fact that the challenged statute was adopted before the expiration of the time limit determined in Point 3 of Decision No. U-I-301/98 cannot decisively influence the review of the constitutionality of the challenged statute. From the existing circumstances it also follows that the manner of implementation determined by the Constitutional Court lost its basic purpose. Any further extension of the term of office of Koper Urban Municipality bodies would no longer serve the purpose the Constitutional Court wanted to achieve by its decision on the extension of that term of office. On the contrary, the further preservation of the temporary regulation determined by the Constitutional Court decision would cause a state of affairs even less bearable in constitutional terms than the present state.

16. The right of voters to vote for their representatives in local self-government at certain time intervals is not in constitutional terms determined in a manner such that elections are required to be carried out exactly every fourth year. The legislature could also determine a longer term of office for local self-government bodies. Thus, for the aforementioned reasons, also the Constitutional Court could determine its term of office as the manner of implementation. However, for reason of the general principle of equality (Art. 14.2 of the Constitution) such a state of affairs may not be maintained for an unlimited period of time. It would lead to a situation in which the exercise of local self-government, which citizens exercise by periodic selection of representatives to local self- government bodies, is substantially endangered. Thus, it is necessary to weigh again all relevant circumstances and this weighing demonstrates that, also for the aforementioned reasons, it is necessary to insure the periodic carrying out of elections, even if these are carried out in a municipality which is not organized in conformity with every single constitutional criterion. What the challenged statute determines is only a new regulation of the temporary state of affairs until the territory of Koper Urban Municipality is made to conform with the Constitution. When the territory of Koper Urban Municipality is put in conformity with the Constitution preliminary elections will be carried out on the basis of Art. 24.4 of ZLV.

17. Considering the aforementioned reasons, the Constitutional Court establishes that the challenged statute, which determines the legal basis for calling local elections in Koper Urban Municipality, is not in violation of the principles of a State governed by the rule of law (Art. 2 of the Constitution), as the petitioners asserted. Moreover, the challenged regulation is not contrary to Art. 87 of the Constitution, for it embodies a special regulation compared to Art. 26.1 of ZLV. Accordingly, the Constitutional Court decided that the challenged statute is not in violation of the Constitution.
 
C.
 
18. The Constitutional Court reached this Decision on the basis of Art. 21 of ZUstS, composed of: Franc Testen, President, and Judges: Dr. Janez Čebulj, Dr. Zvonko Fišer, Lojze Janko, Milojka Modrijan, Dr. Lojze Ude, Dr. Mirjam Škrk and Dr. Dragica Wedam Lukić. The Decision was reached by six votes in favor to two against. Judges Dr. Čebulj and Testen dissented, whereas Judges Dr. Wedam Lukić and Dr. Ude concurred in the majority opinion.
 
 
P r e s i d e n t :
Franc Testen
 
 
 
Concurring Opinion of Judge Dr. Ude 

 
In my concurring opinion, I would like to emphasize only a few aspects of the problem of elections in Koper Urban Municipality, which can otherwise be grasped from the reasoning of the decision reached, however which are in my opinion not emphasized enough.
 
1. The formation of the territories of new municipalities undoubtedly entails a process and not a time-limited momentary transformation of former communes into new forms of local self- government. In terms of content it has still not yet been defined which local affairs may independently be regulated by a municipality and which "concern only the inhabitants of the municipality". In numerous fields the question of which matters fall under the original powers of municipalities in the sense of Art. 140.1 of the Constitution remains open. Thus, for example, in a pending proceeding the question was raised which matters in the field of culture do fall under "local affairs", which are the powers of the State in this field, and where to locate the matters or tasks from the field of culture which obviously do not concern only an individual municipality and which, on the other hand, cannot be located within the powers of the State.
 
Furthermore, the territorial formation of municipalities in conformity with the criteria determined very broadly and vaguely by the Constitution, in particular in its Art. 140, and concretized more in detail by legislation, is considered to be a process.
 
It follows even from Constitutional Court decisions that the matter of the formation of local self-government concerns a process. The point of view relating to the (un)constitutionality of small municipalities has also been changed in the case law of the Constitutional Court. Because of this, in my opinion, in reviewing the constitutionality of a municipal territory (the size of the municipality) it needs to be taken into consideration that all actors (in particular the citizens themselves, but also the National Assembly) must be given time to form the final territory of an individual municipality in conformity with the criteria determined in the Constitution. For this reason, already in previous decisions, I was not and I am still not in favor of straining the question of whether an individual municipal territory in fact matches the constitutional criteria. I am convinced that the formation of such municipalities, the contents and territory of which will match the constitutional concept of local self-government and the will of the people expressed at a referendum, will occur within a suitable period of time.
 
2. Furthermore, I persist in my opinion on the formation of new municipalities as basic units of local self-government when evaluating whether the elections to a municipality whose territory is, according to a Constitutional Court decision, inconsistent with the Constitution and statutory criteria (in that it is too large) may, pursuant to the Constitution, be held and whether the same may be postponed for an unlimited period of time.
 
Truly, from Constitutional Court Decision No. U-I-183/94, or from its reasoning, it is possible to understand the point of view that elections to municipalities which are not in conformity with the constitutional concept of local self- government are not allegedly in conformity with the Constitution. However, this point of view can only be understood from one single sentence cited in Point 12 of the reasoning of the present Decision No. U-I-163/99. I opine that in 1994 the Constitutional Court reviewed (as is written in the reasoning of this decision, which I concur with) predominantly a general situation in which, on the one hand, numerous municipalities were not formed in conformity with the territorial criteria based on the Constitution and in which, on the other hand, some people suggested the postponement of elections in all municipalities. The Constitutional Court reasoned that the elections should not be postponed, for the judges espoused the opinion that such postponement would be "even less" in conformity with the Constitution. However, the Constitutional Court did not carry out at that time a serious constitutional review of the competing values of the right to vote and the right to local self-government which were to be exercised in constitutionally formed municipalities.
 
Accordingly, I believe that in the majority opinion it could explicitly be emphasized that in the case of the eventual postponement of elections to municipalities the right to vote should have priority over the interest to form municipalities in conformity with the constitutional and statutory criteria.
 
3. It should also be taken into consideration that the recipient of the request for forming Koper Municipality on a territory in conformity with the constitutional concept of a municipality is the National Assembly, and the holders of the right to vote in elections to local communities bodies are citizens. Undoubtedly the periodic character of elections is an element of the right to vote. However, this does not follow from Art. 43 of the Constitution, which guarantees the "universal and equal" right to vote, but this explicitly follows from the right to elect a National Assembly, as determined by Art. 81 of the Constitution. Furthermore, the International Covenant on Civil and Political Rights, in Art. 25.b, defines the periodic character of elections as an element of the constitutional right. This article does not only apply to elections to the parliament, but to any elections of representatives through which citizens participate in the management of public affairs.
 
Truly, it would not be inconsistent with the Constitution if statute prescribed elections following longer intervals than prescribed at present. However, this does not mean that the matter does not concern an interference with the constitutional right when voting in elections to local community bodies, which are carried out in all other local communities, by the citizens in the territory of an individual local community, is postponed. There is no doubt that also Constitutional Court Decision No. U- I-301/98 interfered with the constitutional right of the citizens of Koper Municipality to elect their local community bodies.
 
By the cited 1998 decision the Constitutional Court postponed the elections in Koper Municipality and thereby interfered with the right to vote of the citizens of Koper because the National Assembly had not met the requirement that this municipality be formed within constitutionally formed limits. The citizens of Koper Municipality could form new municipalities in narrower territories so that these would match the criteria for the territorial formation of municipalities as determined in the Constitution. However, they did not proceed in such a manner, and the National Assembly did not form by statute municipalities in narrower territories contrary to the will of the people. If one year ago it was still reasonable for the Constitutional Court to postpone the elections for another year and thereby to make possible the formation of municipalities in the territories in conformity with the Constitution, the passage of time augments such interference with the right to vote of the citizens. By reasons of this, in my opinion, any further postponement of the elections would constitutionally inadmissibly interfere with the right to vote and would entail its violation. From this aspect it was also necessary to review the Act on the Calling of Regular Local Elections in Koper Urban Municipality.


Dr. Lojze Ude
 

 
Dissenting Opinion of Judge Dr. Čebulj 

 
I voted against the decision reached since the reasoning of it did not persuade me. I opine that the substantiation adopted by the majority of judges concerning the changed circumstances which in the case of reviewing the constitutionality of the Act on the Calling of Regular Elections in Koper Urban Municipality (Official Gazette RS, No. 53/99 - ZRLVKP) dictated the non- application (in my opinion, however, the change) of the point of view (included in Decision No. U-I-183/94 - Official Gazette RS, No. 73/94 and DecCC III, 122) that elections to the bodies of local communities whose territory is unconstitutional are unconstitutional, is not well founded.
 
I completely concur with the point of view embodied in the reasoning of the decision relating to the effect of Constitutional Court decisions, to their binding effect and to consequences which ensue from their non-implementation.
 
Notwithstanding the fact that I am not fully convinced whether this applies to all cases (for it is difficult to imagine all possible cases), in principle I agree also with the point of view that the character of the part of the disposition of a Constitutional Court decision, which is based on Article 40.2 of the Constitutional Court Act (Official Gazette RS, No. 15/94 - ZUstS), is different from the character of those parts of a disposition by which the merits of the case are decided upon.
 
In other words, I can thus agree with the point of view that the part of a disposition by which the Constitutional Court does not decide upon the merits, but determines the manner of the implementation of the decision, does not have constitutional power (which would entail that the National Assembly could only change it by a law of constitutional rank), but the power of statute, therefore the legislature may as a rule change it (or differently regulate the manner of its implementation) by statute. Such a point of view in no manner interferes with the definition of the contents of the principle of the separation of powers, or with that element of this principle designated by the concept of "checks and balances between the functions of Government" (see concerning this Decision No. U-I-83/94, dated 14 July 1994; Official Gazette RS, No. 48/94 and DecCC III, 89). To this effect, in a case in which the disposition of a Constitutional Court decision has constitutional power such a "check" can only be a law of constitutional rank, however, in cases where the disposition does not have such power the "check" can be a law of statutory rank.
 
But when the legislature changes a part of the disposition of a Constitutional Court decision, which on the basis of Art. 40.2 of ZUstS determines the manner of implementation, the statute by which it proceeds in this manner must not be in violation of the Constitution. In case it determined a manner of implementation contrary to those parts of the disposition of a Constitutional Court decision which have constitutional power, it would also violate the Constitution. On this point it is necessary to consider that in the case of abstract constitutional review the disposition and reasoning of a decision entail a totality for reason of which not only the disposition is binding, but also the reasoning and points of view embodied in the reasoning. In my opinion, this also applies if the disposition of a decision does not explicitly refer to the reasoning in particular when the matter concerns a so-called declaratory decision.
 
A similar point of view is also embodied in the reasoning of the decision which was adopted by the majority of judges in the proceedings of the review of ZRLVKP. From here on, however, my point of view differs from the point of view of the majority of the judges. In my opinion, a correct decision would require that the Constitutional Court annul ZRLVKP. Why?
 
By Point 3 of the disposition of Decision No. U-I-301/98 (Official Gazette RS, No. 67/98 and DecCC VII, 157), which was allegedly the reason for adopting ZRLVKP, the Constitutional Court decided on the basis of Art. 40.2 of ZUstS that the term of office of Koper Urban Municipality bodies be extended until the assumption of office by the bodies of the new municipalities that would be established in conformity with the amendment to the Act on the Establishment of Municipalities and the Determination of their Territories (Official Gazette RS, Nos. 60/94, 69/94 and 56/98 - ZUODNO), thus, in conformity with the Constitution.
 
At first sight the challenged ZRLVKP interferes only with that part of the disposition of the Constitutional Court decision which has the rank of a statutory provision and which could be amended by statute or by which the manner of the implementation of Decision No. U-I-301/98 could be regulated in a different manner. However, this finding alone does not suffice for confirming the conformity of ZRLVKP with the Constitution. What is also necessary is the review of the conformity with the Constitution of the different manner of implementing the mentioned decision determined by ZRLVKP.
 
Point 3 of the disposition of Decision No. U-I-301/98 concerns the established non-conformity with the Constitution of that part of ZUODNO which establishes Koper Urban Municipality and determines its territory. Its purpose is not the postponement of elections as some manner of sanction due to the fact that the National Assembly had not implemented the Constitutional Court decisions relating to Koper Urban Municipality since 1994. Such a purpose would also be meaningless for it does not affect the National Assembly, but the inhabitants of Koper Urban Municipality. Similarly, the purpose of the postponement of elections is not that the Constitutional Court would make it possible by the postponement of elections for all competent bodies to form the territories of new municipalities (as follows from the part of Point 14 of the reasoning of Decision No. U-I- 163/99, which reads as follows: "It is not the case that the Constitutional Court postponed the elections by Decision No. U- I-301/98 because it considered them to be unconstitutional.
 
Evidently the purpose of the Constitutional Court was to make it possible for all competent bodies to form the territories of new municipalities."). If the Constitutional Court had considered the elections unconstitutional, Point 3 of the disposition on the postponement of elections would not have followed at all.
 
Merely Point 2 of the disposition would suffice, which imposed on the legislature the obligation to make ZUODNO conform with the Constitution and which determined for the legislature a time limit of one year to do so. The only meaningful (and constitutionally allowed) purpose of the postponement of the elections could be that repeated unconstitutional elections to Koper Urban Municipality bodies were postponed until the adjustment of ZUODNO with the Constitution. However, it is true that their constitutionality may only be insured by forming (constitutional) territories of new municipalities.
 
The point of view that elections to the bodies of municipalities whose territories are determined to not be in conformity with the Constitution are unconstitutional was not adopted by the Constitutional Court in Decision No. U-I-301/98, but it had already been adopted by the Court in 1994, in Decision No. U-I- 183/94. By that decision the Court had for the first time allowed unconstitutional elections in municipalities which had not been in conformity with the Constitution (among them also Koper Urban Municipality). In the reasoning of this decision (No. U-I-183/94), by which the non-conformity of Arts. 2 and 3 of ZUODNO with the Constitution was established, it was clearly stated that: "The postponement of forming municipalities to the time after the expiration of the time limit extended by the Constitutional Act would be even less in conformity with the Constitution than immediate elections to new municipal councils - even in the municipalities which are not entirely in conformity with the concept of local self-government, which however are still more constitutional than old municipalities which originate from the system and concept of a municipality as a commune." From this sentence two conclusions may be drawn: (1) that elections to the bodies of unconstitutional municipalities are unconstitutional (this follows from the part of the text which reads as follows: "... it would be even less in conformity with the Constitution than immediate elections..."), and (2) that the Constitutional Court reasoned in Decision No. U-I-183/94 why it allowed at that time unconstitutional elections (not only in the Koper Urban Municipality but also in other unconstitutional urban and other municipalities). The reason for this was the transition from the commune system to the system of local self-government.
 
However, in 1998 this reason did not exist anymore. The postponement of elections by Point 3 of the disposition of Decision No. U-I-301/98 was not the consequence of the third establishment of the unconstitutionality (instead of annulment, which was after the two previous establishments of unconstitutionality, in my opinion, the only reasonable step to take) of the territory of Koper Urban Municipality (the first by Decision No. U-I-90/94 - Official Gazette RS, No. 29/94 and DecCC III, 58 - the third by Decision No. U-I-301/98), but a consequence of the fact that the reasons which in 1994 required (or even allowed) that the Constitutional Court (could) allow unconstitutional elections, no longer exist.
 
The manner by which the legislature wanted by means of ZRLVKP to achieve (and by which it indeed achieved, according to the finding of the Constitutional Court on the conformity of ZRLVKP with the Constitution) the insuring of the constitutional right of citizens to elect local communities bodies is, due to the aforementioned reasons, unconstitutional and violates the principles of a State governed by the rule of law. A statute whose purpose is to insure the exercise of the right to vote in a manner such that unconstitutional elections are held is not in conformity with the Constitution (in particular, not with the principles of a State governed by the rule of law). Therefore, the matter does not concern a conflict between the right to local self-government and the right to vote (as asserted by the legislature, the substantiation of which the majority of the Constitutional Court joined), for the former right (although not a human right) cannot compete with the unconstitutional exercise of the latter (although this is a human right).
 
Furthermore, in such a manner the right to equality determined in Art. 14 of the Constitution cannot be exercised.
 
Nevertheless - I emphasize again - even if the matter entailed a restriction of the exercise (periodicity) of the right to vote, this would not be possible (nor would it be constitutionally allowed) to be remedied by unconstitutional elections called by a statute which interferes with the constitutional reasoning of the Constitutional Court. Such a step may perhaps be taken by the National Assembly by a constitutional act with which the Constitutional Court cannot as a rule interfere. The only constitutional manner by which the legislature could insure by statute the exercise of the constitutional right of citizens to elect bodies in the territory of Koper Urban Municipality is the adoption of the amendment to ZUODNO in the part relating to Koper Urban Municipality. And, since 1994, this has been imposed on the legislature by the Constitutional Court already three times. However, the legislature has not complied with this.
 
ZRLVKP interferes with the reasoning of the Constitutional Court (on the point of view of the unconstitutionality of elections embodied in Decision No. U-I-183/94). It interferes with it because the circumstances stated in Point 13 of the reasoning of Decision No. U-I-163/99, as being the circumstances which justify the rejection of using that point of view (of the constitutional reasoning of Decision U-I-183/94) in reviewing the constitutionality of ZRLVKP, do not support such a decision. Regarding this part of the reasoning the majority decision stems from the assumption that today it is still possible to allow changes to status (concerning the establishment of new municipalities), which would be unconstitutional and, as a consequence, also the elections to the bodies of such unconstitutional municipalities. Otherwise it is not possible to understand the sentence from this part of the reasoning, which reads as follows: "The then point of view taken by the Constitutional Court on the unconstitutionality of elections in the old municipalities cannot simply be transferred to the present circumstances. If this was done, to simplify, not only elections in the present Koper Urban Municipality but also the elections in every municipality in which the same situation occurs in view of possible changes of status, would be unconstitutional until municipalities are established in territories that conform with the Constitution." I cannot accept such a reasoning. First, in Decision No. U-I-183/94 there was not included a point of view stating the "unconstitutionality of elections to the old municipalities", but rather the "unconstitutionality of elections to the (new) municipalities with unconstitutional territories". And, second, I cannot approve of the majority point of view that after the introduction of local self-government changes of status leading to unconstitutional territories of municipalities may still be allowed. To prevent this is the duty of the legislature in the first place, and then the duty of the Constitutional Court. And until a new municipality is given (constitutional) territory, it cannot be established. And if it cannot be established - can elections be held?
 
Also, I find unacceptable that part of the reasoning embodied in Point 13, which reads as follows: "The point of view of the unconstitutionality of elections should be inserted into the then existing context of establishing local self-government compared to the previous communes system. And only in this context may it have constitutional significance." Such a point of view can only be interpreted in a manner such that the Constitutional Court in Decision No. U-I-183/94 decided that elections to the municipalities with unconstitutional territories were unconstitutional only at the moment of transition from the commune system or at the moment of the creation of local self-government, and not subsequently.
 
However, this is not so. It is just the opposite: the creation of local self-government was the reason which at that moment (in 1994) enabled the Constitutional Court to decide upon the admissibility of unconstitutional elections in the municipalities whose territories were unconstitutional. Thus, the then point of view taken by the Constitutional Court has today the same constitutional significance as it had at that time, with the exception that at that time the Constitutional Court allowed unconstitutional elections (for the mentioned reasons), however, in 1998 it did not allow such elections.
 
Truly, (as the majority of the judges established) the territorialization of local self-government is a process which continues also after the creation of local self-government.
 
Changes of the status of municipalities will occur but, in a State governed by the rule of law, these changes are allowed only if made in conformity with the Constitution. And if the mentioned point of view has completely the same constitutional significance as it had had at the time of the transition from the commune system to the system of local self-government, then in deciding on the constitutionality of ZRLVKP, the majority of the judges changed their point of view (constitutional reasoning) in Decision No. U-I-183/94. - Unfoundedly, in my opinion.
 
Since territory is one of the crucial components of local self- government, it is hard to hold that forming a municipality with an unconstitutional territory does not entail an interference with the exercise of the right to local self-government, as asserted by the petitioners. The only constitutional manner of exercising this right is exercising it in a municipality whose territory meets constitutional criteria. If the State cannot guarantee such a manner of exercising this right the matter concerns the same violation of the right to self-government as occurs when the State does not secure necessary financial resources (proper expenditure and financial balance) for a municipality to carry out its local affairs.
 
Furthermore, the will expressed at a referendum cannot be a reason for disrespecting a Constitutional Court decision. In 1994, in Decision No. U-I-144/94 (Official Gazette RS, No. 45/94 and DecCC III,95), in which the Constitutional Court reviewed the two ordinances on the determination of a referendum area for the establishment of Koper Municipality and on the call of a referendum for the establishment of Koper Municipality, it decided that it was constitutionally admissible that the National Assembly established by statute municipalities on the basis of the referenda already carried out or the repeated referenda. From subsequent decisions (Decision No. U-I-183/94) it follows that the Constitution has envisaged an inquiring referendum, however it has left the final determination of the territory of municipalities to the legislature. Therefore, the will expressed at a referendum does not bind the legislature in an absolute or unconditional manner when determining the territory of a municipality. Such would exceed constitutional powers concerning non-binding effects only if the National Assembly did not form a municipality in a territory which met constitutional and statutory criteria, and in which the inhabitants voted at a referendum for establishing their own municipality. In addition, according to the then opinion of the Constitutional Court, it would even be necessary to consider whether the remaining part of the territory met the conditions for establishing a municipality.


Dr. Janez Čebulj
 


Dissenting Opinion of Judge Testen 


1.
 
I cannot agree with the decision that the challenged Act on the Call of Regular Local Elections in Koper Municipality (Official Gazette RS, No. 53/99) is in conformity with the Constitution.
 
First of all I should say that concerning this question I join the main reasons stated by Judge Dr. Čebulj in his dissenting opinion. I repeat in short that the only constitutional manner for the legislature to ensure the constitutional right of citizens to elect bodies in the territory of Koper Urban Municipality would be to adopt an Act on the Amendment to ZUODNO in the part which refers to Koper Urban Municipality.
 
Furthermore, I repeat what is mistaken is the point of view which follows from the main reasons of the adopted decision as if the Constitutional Court in Decision No. U-I-183/94 decided that elections in municipalities with unconstitutional territories were unconstitutional only at the moment of the transition from the commune system Šinto the local self- government systemĆ, or at the moment of establishing local self- government. In my opinion as well, the Constitutional Court has in fact changed its point of view concerning this constitutional question in the decision to which I dissent.
 
In the continuation of this dissenting opinion, first, I would like to emphasize the positive elements of the decision with which, however, I cannot agree. Secondly, I will state some additional reasons (beside those espoused by Judge Dr. Čebulj in his dissenting opinion) explaining why I think that this decision of the Court is erroneous.
 
2.
 
First, I should say that I agree with the system of categories used by the decision reached and with the scheme which led the majority to the decision with which I, however, do not agree.
 
In this connection I would like to mention the following: - If constitutional reasons had not truly existed for adopting the disposition in Point 3 of Decision No. U-I-301/98, as the majority believes - in my opinion, mistakenly - the legislature would not have violated the principle of the separation of powers by merely regulating this question in a different manner than it had (temporarily) been regulated by the Constitutional Court, but it would still remain within the framework of the authority vested in it by the Constitution. Such legal characterization of decisions which the Constitutional Court reaches according to Art. 40.2 of ZUstS (with which I in principle agree) appears to be an important theoretical contribution, included in the decision at issue, to discussions on the effect and binding character of Constitutional Court decisions, in particular in relation to the legislature; - The next issue I would like to refer to is that the Constitutional Court also in this decision (unanimously, if one considers the two judges who otherwise voted against the disposition) persists in its point of view that the Constitutional Court is the "guardian" of the Constitution, (also) in the sense that its constitutional interpretations are also binding on the legislature and that the National Assembly is obliged to implement Constitutional Court decisions, otherwise it would be in violation of Arts. 2 and 3 of the Constitution. It follows also from this decision that the National Assembly has continuously violated the Constitution for several years, since in the territory of the present Koper Municipality it has not formed municipalities whose territorial size would be in conformity with the Constitution - the fact that elections will be carried out in such a municipality on the basis of the challenged statute does not change anything with regard to this question (Point 10 of the Reasoning).
 
Furthermore, it follows that the adoption of a statute by which the National Assembly would regulate a certain question contrary to the constitutional review applied is "in itself" unconstitutional (the end of Point 10 and the beginning of Point 11 of the Reasoning).
 
- Furthermore, it appears to be important to point to the majority point of view (which I join) that the Constitutional Court could have even reacted more strongly, e.g., in a manner such that after the National Assembly had failed by ZUODNO to remedy the unconstitutionality the Court could annul such a statute. From this it also follows that in determining the manner of the implementation of Decision No. U-I-301/98, when it needed for the third time in the same case to establish that the legislature had not fulfilled its constitutional obligation, the Court was indeed self-restrained. Moreover, on the basis of the experience I have gained in these proceedings, I will strive in the future for the Constitutional Court to be more actively involved in resolving and remedying the unconstitutionalities established, of course, within the limits of its powers.
 
3.
 
3.1. Although the decision correctly answered the basic question in this case: whether the legislature may adopt a statute by which it regulates in its own manner a question in a disposition that the Constitutional Court has determined on the basis or Art. 40.2 of ZUstS, without violating the Constitution, I realized when reviewing the conformity of the contents of this statute with the Constitution that the statute is unconstitutional and that it should also be annulled for the following reasons.
 
3.2. Besides the mere unconstitutional relation of the municipality to the bodies to be elected - due to which the elections themselves will be unconstitutional - it is also necessary to consider the fact that the entire debate concerning the adoption of this statute is replete with another serious unconstitutionality: that is, with the fact that the National Assembly has been seriously violating Arts. 2 and 3 of the Constitution for several years by not implementing the Constitutional Court decisions by which the Court had established the unconstitutionality of Koper Municipality and had imposed on the Assembly the duty to make it conform with the Constitution in the time limit, which has more than once expired without the condition being fulfilled. On this point it is not unimportant to say that it is exactly those Deputies who bear the greatest responsibility for not-complying with the Constitutional Court decision contributed most to the adoption of the presently challenged statute. The Constitutional Court has frequently said that also the motivation (in terms of civil law, defined as cause, such is not only an inclination, but the real basis) of the legislature can affect the unconstitutionality of a statute. If motivation is unconstitutional also a regulation thereby adopted is replete with unconstitutionality. The assumed cause of the challenged statute was allegedly to insure also the citizens of Koper Municipality the constitutional right to vote. If the National Assembly genuinely opined that this right was violated, it could use its own means, which had been allowed and even imposed on it by the Constitutional Court, to reach this objective: i.e., the transformation of Koper Municipality in a manner such that it would be formed in conformity with the Constitution. However, the legislature did not use this constitutional means but opted for a means which enables reaching the declared objective in a manner which still makes possible non-compliance with the Constitutional Court decision and, in spite of the fact that this matter does not concern a direct violation of the principle of the separation of powers, nevertheless makes possible further non-compliance with the Constitutional Court decision. Such disallowed real basis for adopting a regulation, however, indirectly violates the constitutional principle of the separation of powers.
 
3.3. In resolving the unconstitutional situation caused by the National Assembly itself, the Assembly as the opposing party completely unfoundedly states among the reasons for adopting the challenged statute that this statute will make possible to a greater extent the establishment of new municipalities. The "Koper" affair has gained enough publicity to reliably say that those persons who initially promoted the violation of the decision by which the Constitutional Court had temporarily prohibited elections in Koper Urban Municipality, who further "threatened" to internationalize the affair, who subsequently appealed to the European Court of Human Rights concerning the alleged violation of the right to vote, and who finally strived most to promote the adoption of the challenged statute, were the ones who have also all the time impeded the transformation of Koper municipality into being in conformity with the Constitution. In fact, extending the term of office of bodies in the unconstitutionally formed municipality entailed, besides everything else, also an "increased sanction" imposed because of the non-compliance with the Constitutional Court decision. Here I cannot agree with Judge Dr. Čebulj that that measure could not embody a sanction since the Constitution was allegedly violated by the National Assembly, but the prohibition of elections allegedly affected in particular the citizens of Koper. By postponing the elections, no constitutional right of the citizens of Koper was violated. However, the fact that the elections could not be carried out apparently in addition deprived the elected bodies of their legitimacy and showed more clearly than the territorial non-conformity that the municipality was not consistent with the constitutional requirements - which resulted in an additional pressure on the legislature. Therefore, I cannot agree with the other members of the Court which allowed the legislature to remove the only measure against its unconstitutional actions lasting a number of years, and who on the other hand emphasize that the Constitutional Court could increase its sanction in a manner such that it could even annul the statute in the part establishing Koper municipality.
 
3.4. As already mentioned, one of the deficiencies of Decision No. U-I-301/98 was that it did not state reasons for the presently disputed part of Point 3 of the disposition. Judge Dr. Čebulj found constitutional reasons in the precedent Decision No. U-I-183/94, so I also view that part of the disposition as an "increased sanction", which was to additionally pressure the National Assembly, or those groups in it, which had resisted the implementation of the Constitutional Court decision. The judges who voted in favor of this decision, which I dissent to, stated (correctly, however ex post because they did not have any other possibility) for the decision the following reasons: the carrying out of local elections together with the commenced procedure for changing the territory of the municipality would not be sensible, nor rational, or could slow down the procedure for changing its territory (the last sentence of Point 14 of the Reasoning). I can also agree with such bases for Point 3 of the disposition of the mentioned decision and I add that the existence of only these reasons would be enough for substantiating this part of the disposition (see the point of view in footnote No. 5). Given only such interpretation of the basis for the disputed Point 3 of the disposition of the mentioned decision, the substantiation written by the majority in Point 15 of the Reasoning is not logical and which I understand to be the main reason for the decision, to which I give this dissenting opinion: that because there is no real possibility of adjusting the territory of Koper Urban Municipality with the Constitution in the time limit determined in the Constitutional Court decision, ... the manner of implementation determined by the Constitutional Court has thereby lost its main significance. This view cannot be applied although we consider elections to only be an act which "could slow down the procedure for changing the territory of a municipality", and it is even less likely that this view could be applied if we understand such an act to be an increased sanction. I cannot understand how the elections could slow down the procedure for changing the territory of the municipality one year ago, and why after that year they would not have the same effect anymore.
 
3.5. Also other reasons did not cease to exist due to the expiration of the repeatedly extended time limit for the implementation of the Constitutional Court decision, which had been established by the majority decision on the postponement of elections, that is, that the carrying out of local elections before the adjustment of the municipality would neither be sensible, nor rational. Since elections will be held to the bodies of the municipality which was not formed in conformity with the Constitution, the term of office of such elected bodies will be "distorted" for they will exercise authority in a community which is not a self-governing community in conformity with the Constitution. Besides that, one cannot overlook the fact that for ensuring the exercise of this, thereby hollow, right which, as already mentioned, would not be impaired even if elections are not held for some additional years, certain costs will ensue. After the National Assembly stated that the implementation of the disputed statute would alleviate the formation of municipalities in conformity with the Constitution it may reasonably be expected from it to adjust the territory of the municipality within a time which will pursuant to Art. 24.2 of ZLV, require the carrying out of premature elections. All endeavors, walking on the margin of constitutionality (in my opinion, also over this margin), complications and costs incurred concerning the elections which will now be carried out in conformity with the challenged statute, may only be justified by the fact that "provisional" bodies in the municipality were formed, thereby ensuring the exercise of the thus hollow right to vote and be elected.



Franc Testen
 
 
Concurring Opinion of Judge Dr. Wedam Lukić 

 
I voted for the disposition of the decision by which the Constitutional Court decided that the Act on the Calling of Regular Local Elections in Koper Urban Municipality (Official Gazette RS, No. 53/99) is not inconsistent with the Constitution. Furthermore, I fully agree with the main reasons for the decision, either concerning the effects of the Constitutional Court decision pursuant to Art. 40.2 of ZUstS (the manner of the implementation of a decision), or concerning the review of the substantive conformity of the challenged statute with the Constitution. Since in this regard the question of the "constitutionality of elections to an unconstitutional municipality" was raised, in this concurring opinion, I will present some of my points of view on this question.
 
In Point 3 of the disposition of Decision No. U-I-301/98 the Constitutional Court extended the term of office of Koper Urban Municipality bodies until the assumption of the same office by new municipal bodies. The Court did not especially substantiate this part of the disposition, however in Point C of the Reasoning (legal basis) it referred to Art. 40.2 of ZUstS. From this it may be inferred that the Court did not decide to extend the term of office because it judged that the elections to Koper Urban Municipality bodies were unconstitutional, but the matter concerned ŠonlyĆ the implementation of that decision. In the discussion what was expressed was the point of view that the Constitutional Court had taken in Decision U-I-183/94 the point of view that elections to the bodies of municipalities whose territory are not determined in conformity with the Constitution were unconstitutional. The Constitutional Court refused this idea by substantiating that that point of view "cannot simply be transferred to the present circumstances", but it must be "inserted into the then context of establishing local self- government compared to the previously existing commune system".
 
When local self-government is formed the system of municipalities may be changed, therefore, in the opinion of the Constitutional Court, the change in local self-government should not directly be connected with elections.
 
I agree that the point of view expressed in Decision No. U-I- 183/94 cannot be ascribed the effect of precedent for the present situation. The right to vote is one of the constitutionally protected human rights (Article 43 of the Constitution), and its constitutive part is also the periodicity of elections. I can accept the point of view that extending a term of office in itself does not contradict the Constitution, since the Constitution does not prescribe the length of the term of office of local communities bodies, but only if justified reasons exist for this. When elections are inconsistent with the Constitution is however a complex question which needs to be answered case by case. On this point it is necessary to differentiate between the cases in which the matter concerns the unconstitutionality of elections by themselves, since these do not guarantee the free and equal exercise of the right to vote, and the cases in which what is unconstitutional is the result which such elections would lead to. I do not consider a regulation to be unconstitutional merely because it is a regulation on the call of elections to an unconstitutional body (e.g. the presidency of the State), or to some unconstitutional institution (e.g. a part of the State as the "republic").
 
However, the question is whether the elections to a municipality, which is a constitutional category, are unconstitutional only for the reason of this municipality not being concerning its size adjusted to the Constitution. In this case it is necessary to judge which state of affairs is more (or less) in conformity with the Constitution - the state which will be created by the elections, or the state if the elections are not held (such judgment was made by the Constitutional Court also in Decision No. U-I-183/94). The annulment of the challenged statute and thus a further postponement of elections would be justified in the case if thereby the creation of an even more unconstitutional state of affairs than the present state is thus prevented. However, in the case at issue the present state of affairs in Koper Urban Municipality is not more in conformity with the Constitution than will be the state of affairs resulting from holding elections. If both states are equally unconstitutional, in my opinion, it is necessary to decide in favour of the right to vote, which as a human right has priority over the right to local self-government in a municipality which is entirely made in conformity with the Constitution, in particular if the matter concerns the postponement of elections in only one municipality. Moreover, it needs to be emphasized that in the case considered it is not possible to mention the conflict between "constitutional" and "unconstitutional" elections, since for the time being the voters cannot exercise their right to vote in a different manner than in the existing municipality. Thus, I join the majority opinion that after the fact that the National Assembly, in spite of a rather unconvincing attempt, did not succeed in adjusting Koper Urban Municipality with the Constitution, a further extension of the term of offices will not serve its purpose and, therefore, the carrying out of regular local elections in Koper Urban Municipality is not inconsistent with the Constitution.

 
Dr. Dragica Wedam Lukić
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Alojz Gec, Hrvatini and others
Date of application:
08.07.1999
Date of decision:
23.09.1999
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is not inconsistent with the Constitution/statute
Document:
AN01808