U-I-103/02

Reference no.:
U-I-103/02
Objavljeno:
Official Gazette RS, No. 39/02 and OdlUS XI, 64 | 18.04.2002
ECLI:
ECLI:SI:USRS:2002:U.I.103.02
Act:
Ordinance on Calling a Referendum and Determining Referendum Territories for Establishing of Municipalities, and for Determining or Changing Their Boundaries (Official Gazette RS, No. 18/02)
Operative provisions:
The petitions for the commencement of the proceedings to review the constitutionality and legality of the Ordinance on Calling a Referendum and Determining Referendum Territories for Establishing of Municipalities, and for Determining or Changing Their Boundaries (Official Gazette RS, No. 18/02), are rejected. Subparagraphs I/2, I/3, I/5, I/6, I/7, I/8, I/9, I/10, and I/11, subparagraph I/13 in the part regarding the proposal for establishing Kamniška Bistrica Municipality, subparagraph I/15, subparagraph I/16 in the part regarding the proposal for establishing Sveti Jurij in Slovenske gorice and Volčina in Slovenske gorice Municipalities, subparagraphs I/18, I/19, I/20, I/21, I/22 and I/23, subparagraph I/24 in the part regarding the proposal for establishing Ponikva Municipality, and subparagraphs I/25, I/26, I/27, I/28, I/29, I/30, and V/3 of National Assembly Order No. 005-01/95-4/30, dated 26 February 2002 (Official Gazette RS, No. 18/02), are not inconsistent with the Constitution and the statute. Subparagraphs I/1, I/4, and I/12, subparagraph I/14 in the part regarding the proposal for establishing Kostanjevica near Krka Municipality, subparagraph I/24 in the part regarding the proposal for establishing Planina Municipality, and subparagraphs II/1, IV/1, IV/2, V/1, and V/2 of National Assembly Order, are abrogated. The abrogation takes effect the next day of the serving of this decision to the National Assembly. The National Assembly is obliged, in not later then 30 days of the serving of the decision, to retry in the previous subparagraph stated proposals and evaluate whether they fulfill the conditions for establishing municipalities or changing their boundaries provided by the Constitution and the statute, and adopt an adequate act in accordance with Arts. 13 or 14 of the Procedure for Establishing Municipalities and Determining Their Boundaries Act (Official Gazette RS, No. 44/96).
Abstract:
The Constitutional Court rejected the petitions challenging the Ordinance on Calling a Referendum and Determining Referendum Territories for Establishing of Municipalities, and for Determining or Changing Their Boundaries, as it does not directly interfere with their rights, legal interests or legal position.

In the petitions, the petitioners did not assert the arbitrary conduct regarding the challenged Ordinance, i.e. that the National Assembly called a referendum in the territories which are regarding the fulfillment of the statutory conditions comparable to the territories regarding which the proposal was rejected or concerning which it was established that the statutory conditions for the establishing of municipalities were not fulfilled.

The National Assembly is obliged to act in accordance with the Constitution and the statute notwithstanding its prior conduct, which in the discussed procedure also did. Therefore, it cannot be considered that in the discussed procedure it acted arbitrarily compared to the already established municipalities, and thereby violated the principle of equality determined in Art. 14.2 of the Constitution, and the right to the equal protection of rights determined in Art. 22 of the Constitution.

The National Assembly is not obliged to establish a municipality, nor to call a referendum in order to determine the will of the residents of a territory which does not fulfill the conditions determined in the Establishment of Municipalities Act. First, the National Assembly must evaluate the fulfillment of the conditions, and only if it establishes that the conditions for establishing a municipality or changing its boundaries, determined in the Constitution and the statute are fulfilled, it determines the territory in which a referendum is to be carried out in order to determine the will of the residents. The National Assembly must evaluate the fulfillment of the conditions in their entirety. It is the fulfillment of all the prescribed conditions, should they be of an absolute or relative nature, including the conditions determined in Arts. 15 and 16 of the Local Government Act, if an urban municipality is concerned. In cases where a certain condition is of a relative nature, the existence of circumstances which substantiate (justify) its relative application must be determined.

The duty of a proposer for the commencement of procedures for establishing a new municipality to reason the grounds for establishing the new municipality or changing its boundaries, and to reason the existence of the conditions for its establishing provided by the Constitution and the Local Government Act, is set against the duty of the National Assembly to evaluate (ascertain) in such procedures whether individual proposals fulfill the conditions provided by the Constitution and the Local Government Act. It is not in accordance with the principles of a State governed by the rule of law determined in Art. 2 of the Constitution (one of these principles is also the principle of legality or the mutual consistency of legal acts as detailed in Art. 153 of the Constitution) and the principle of the equality pursuant to Art. 14 of the Constitution, if a decision is adopted contrary to the prescribed conditions, if it is adopted without a substantiated reason, or if a decision does not comprise a convincing reasoning.
Password:
Constitutional Court, temporary injunction, ordinance, refusal.
Municipality, establishing or changing new municipalities.
Municipality, referendum for establishing or changing new municipalities.
Legal interest (as procedural condition for a constitutional procedure).
Principle of equality before the law.
Principle of equal protection of rights.
Principle of legality.
Principles of a State governed by the rule of law.
Principle of mutual consistency of legal acts.
Exercising and limitation of rights.
Local self-government, municipalities.
Right to participate in the management of public affairs.
Local self-government, exercising.
Municipality, urban municipality.
Concurring opinion of a Constitutional Court judge.
Legal basis:
Constitution, Arts. 2, 9, 14, 22, 139, 153
Procedure for Establishing Municipalities and Determining Their Boundaries Act (ZPOUDO), Arts. 4,5 to 15
Establishing of Municipalities and Determining Their Boundaries Act (ZUODNO), Arts. 2, 3
Local Government Act (ZLS), Arts. 13, 13a, 15, 16, 16a
Constitutional Court Act (ZUstS), Arts. 21, 24, 25, 40.2, 45.3
Document in PDF:
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
municipal regulation
Applicant:
Martjanci Local Community and others
Date of application:
05.03.2002
Date of decision:
18.04.2002
Type of decision adopted:
decision
Outcome of proceedings:
rejection
Document:
AN02525