U-I-137/10

Reference no.:
U-I-137/10
ECLI:
ECLI:SI:USRS:2010:U.I.137.10
Act:
The Establishment of Municipalities and Municipal Boundaries Act (Official Gazette RS, No. 108/06 – official consolidated text)

The Decree of the President of the National Assembly of the Republic of Slovenia Calling the Regular Elections of Municipal Councils and the Regular Elections of Mayors (Official Gazette RS, No. 60/10)
Operative provisions:
The Establishment of Municipalities and Municipal Boundaries Act (Official Gazette RS, No. 108/06 – official consolidated text) is inconsistent with the Constitution.
 
The National Assembly of the Republic of Slovenia must remedy the inconsistency referred to in the preceding point of these operative provisions within a time limit of two months following the publication of this Decision in the Official Gazette of the Republic of Slovenia.
 
The Decree of the President of the National Assembly of the Republic of Slovenia Calling the Regular Elections to Municipal Councils and the Regular Elections of Mayors (Official Gazette RS, No. 60/10) is annulled insofar as it refers to the elections in the Urban Municipality of Koper and the Municipality of Trebnje.
 
Within a time limit of 20 days following the entry into force of the law by which the National Assembly will fulfil the requirement referred to in the second point of these operative provisions, the President of the National Assembly shall call the elections of municipal councils and the elections of mayors of the new Municipalities of Ankaran and Mirna, and the Urban Municipality of Koper and the Municipality of Trebnje in accordance with the rules that apply for early elections of a municipal council if such is dissolved before the termination of its four-year term of office.
 
The term of office of the members of the municipal councils and the mayors of the Urban Municipality of Koper and the Municipality of Trebnje is to be extended until the first session of the newly elected municipal councils.
Abstract:
It follows from the hitherto interpretations of the Constitutional Court that Articles 138 and 139 of the Constitution must be interpreted as ensuring the people of Slovenia the right to exercise local self-government in a municipality established in accordance with the conditions and according to the procedure determined by law, and that the National Assembly is – regarding the establishment of municipalities and any change in their territory – bound by the will of the voters expressed in a referendum on the establishment of the municipality or a change in its territory, except in two cases: when respecting the will of the voters expressed at a referendum would lead to the establishment of communities that do not meet the constitutional and statutory provisions on municipalities and when it is objectively not possible to respect the will of the voters expressed at a referendum due to the conflicting results of referenda.
 
The National Assembly was entitled to determine the conditions under which it assessed specific proposals for the establishment of municipalities and the principle of a state governed by the rule of law requires that the legislature follow the rules it has itself created and that it does not act arbitrarily in its decisions regarding the establishment of municipalities. Conduct contrary to these principles entails a violation of the principle of a state governed by the rule of law (Article 2 of the Constitution) and the general principle of equality before the law (the second paragraph of Article 14 of the Constitution).
 
The right to local self-government is a constitutional right of the residents residing in a certain territory who are connected by common needs and interests to govern their local affairs themselves. An integral part of this right is also the possibility that the residents of a certain territory exercise this right in a municipality that they establish independently in accordance with statutory conditions. This is the purpose of the constitutional provision that requires that the National Assembly establish the municipality on the basis of the prior determination of the will of the residents. At the end of this process, the National Assembly decides exactly on the exercise of this constitutional right, namely on the grounds of the determination that, according to the procedure carried out, the documents submitted, and the established facts, as well as on the basis of the outcome of the referendum, the constitutional and statutory conditions for the establishment of the municipality as a fundamental self-governing local community are fulfilled.
 
The Constitutional Court dismissed the objection that the proposed Ankaran municipality does not meet the constitutional and statutory conditions by reasoning that all the issues regarding the fulfilment of conditions must be resolved in proceedings before a referendum is called, including the application for judicial protection.
 
An essential condition for the exercise of the constitutional right to local self-government is that a municipality be established in accordance with the constitutionally and statutorily defined procedure. While this constitutional right does not ensure an abstract right to establish a municipality in whatever territory chosen, it does ensure the right of the residents residing in a certain territory that are connected by common needs and interests to govern local affairs themselves.
 
Following the prescribed procedure, which is directed by the National Assembly, municipalities are established by a law. It is true that in adopting the laws by which it regulates social relations in a general and abstract manner, the legislature is completely autonomous and bound only by the Constitution. It undoubtedly exercised this broad autonomy concerning the establishment of municipalities when adopting the laws by which it prescribed the conditions and the procedure for the establishment of municipalities in accordance with the Constitution. However, this autonomy is not so broad when adopting the law by which the National Assembly decides on the establishment of a municipality.
 
The statutory regulation of the conditions and the procedure for the establishment of municipalities and for ensuring judicial protection in this procedure do not require only that the legislature respect it (Article 2 of the Constitution), but also the equal treatment of all citizens (petitioners) who wish to establish a municipality in a certain territory (the second paragraph of Article 14 of the Constitution). The principle of equality undoubtedly requires that the National Assembly apply the prescribed conditions equally in all cases. If a territory meets the conditions, the National Assembly must proceed in the same manner as it has done in cases where the conditions were met.
 
The aim of the procedures for establishing municipalities is the exercise of local self-government in a certain territory and this is ensured only through the election of mayors and municipal councillors. One consequence of the determination of the unconstitutionality of the Establishment of Municipalities and Municipal Boundaries Act is also the determination of the unconstitutionality of the decree of the President of the National Assembly regarding the calling of the elections in the Koper and Trebnje municipalities, as the unconstitutional state of affairs established by this decision would just be extended and the residents of the new municipalities would be prevented from exercising their right to local self-government in these municipalities.
Legal basis:
Arts. 1, 2, 3, 9, 14, 44, 138, 139, 140, 141, 142, 143, 144, Constitution [CRS]
Arts. 40, 45.2, 48, Constitutional Court Act [CCA]
Document in PDF:
The full text:
U-I-137/10
26 November 2010
 
DECISION
 
At a session held on 26 November 2010, in proceedings for the review of constitutionality initiated upon the petition of the Ankaran Local Community, the Mirna Local Community, and others, represented by Mag. Miha Šipec, attorney in Ljubljana, the Constitutional Court
 
decided as follows:
 
1. The Establishment of Municipalities and Municipal Boundaries Act (Official Gazette RS, No. 108/06 – official consolidated text) is inconsistent with the Constitution.
 
2. The National Assembly of the Republic of Slovenia must remedy the inconsistency referred to in the preceding point of these operative provisions within a time limit of two months following the publication of this Decision in the Official Gazette of the Republic of Slovenia.
 
3. The Decree of the President of the National Assembly of the Republic of Slovenia Calling the Regular Elections to Municipal Councils and the Regular Elections of Mayors (Official Gazette RS, No. 60/10) is annulled insofar as it refers to the elections in the Urban Municipality of Koper and the Municipality of Trebnje.
 
4. Within a time limit of 20 days following the entry into force of the law by which the National Assembly will fulfil the requirement referred to in the second point of these operative provisions, the President of the National Assembly shall call the elections of municipal councils and the elections of mayors of the new Municipalities of Ankaran and Mirna, and the Urban Municipality of Koper and the Municipality of Trebnje in accordance with the rules that apply for early elections of a municipal council if such is dissolved before the termination of its four-year term of office.
 
5. The term of office of the members of the municipal councils and the mayors of the Urban Municipality of Koper and the Municipality of Trebnje is to be extended until the first session of the newly elected municipal councils.
 
 
Reasoning
 
A
 
1. The petitioners challenge the Establishment of Municipalities and Municipal Boundaries Act (hereinafter referred to as the EMMBA), as it does not contain any provisions regarding the Municipality of Ankaran and the Municipality of Mirna. The National Assembly of the Republic of Slovenia adopted the assessment that the territories in question fulfil the statutory conditions for the establishment of a municipality, and, on the basis of this assessment, it called referenda for the determination of the will of the residents of these territories. In both referenda the residents supported the establishment of a new municipality. On this basis, the Government of the Republic of Slovenia submitted a draft of the Establishment of the Municipality of Ankaran and the Municipality of Mirna and the Determination of their Territories Act (EPA 943-V, hereinafter referred to as the EMMBA-G), which was not adopted; furthermore, a subsequently submitted draft law on the establishment of the Municipality of Ankaran was not adopted, while a subsequently submitted draft law on the establishment of the Municipality of Mirna is still in the legislative procedure. The rejection of these draft laws or failure to adopt them without a substantiated reason would allegedly entail arbitrary decision-making by the National Assembly as well as a violation of the principles of a state governed by the rule of law and the principle of the equality of the residents of the territories in question (Article 2 and the second paragraph of Article 14 of the Constitution), a violation of the fairness of the proceedings in which their proposals would be considered (Article 22 of the Constitution), and would prevent the exercise of the right to judicial protection and to a legal remedy (Articles 23 and 25 of the Constitution), as the law does not prescribe a legal remedy for such a situation. Since the legal situation is not consistent with the will of the people expressed in a referendum, the challenged Act allegedly also violates the principle determined by the second paragraph of Article 3 of the Constitution, according to which power is vested in the people. Such a situation allegedly unconstitutionally interferes with Articles 9 and 38 of the Constitution, according to which local self-government is guaranteed in Slovenia and the residents exercise it in local communities, and it allegedly also violates the third paragraph of Article 139 of the Constitution, according to which a municipality is established by law, following a referendum in which the will of the residents of a particular territory is determined. At the same time, it allegedly violates Article 44 of the Constitution, as the will of the residents of the territories in question determined in a referendum was nullified and as they cannot participate in the governance of public affairs in a manner that they themselves chose in accordance with the law and the Constitution. The petitioners emphasise that the creation of such an unconstitutional situation just before the local elections entails its perpetuation for another four years, as the possible subsequent amendment of the EMMBA as such could only have effect at the first regular local elections [following its entry into force]. They draw attention to the still on-going unconstitutionality of the Urban Municipality of Koper and the Constitutional Court decisions regarding the protection of specific parts of the territory of Ankaran. They enclose an expert opinion regarding the constitutional aspects of the establishment of the Municipality of Ankaran with the petition.[1] They suggest absolute priority consideration. They propose that the Constitutional Court [issue a Decision] establishing the existence of an unconstitutional legal gap in the challenged Act, that, by determining the manner of the implementation of the Decision until the inconsistency of the Act with the Constitution is remedied, it ensures the establishment of municipalities on the two territories in question (they refer to Decision of the Constitutional Court No. U-I-294/98, dated 12 October 1998, Official Gazette RS, No. 72/98, and OdlUS VII, 185), and that it suspend the regular local elections in the Urban Municipality of Koper and the Municipality of Trebnje, which will allegedly enable their transformation into municipalities that are in conformity with the Constitution.
 
2. In its reply, the National Assembly summarises the course of the procedure for the establishment of municipalities in the years 2009 and 2010, namely from the viewpoint of the law in force as well as from the viewpoint of the actual course of the procedure. It states that in such procedure the National Assembly decides on the basis of expert assessments and the proposals of the Government, which, within the framework of its responsibility with regard to the National Assembly (the first paragraph of Article 4 of the Act on the Government of the Republic of Slovenia, Official Gazette RS, No. 24/05 – official consolidated text, and 109/08 – AGRS), also implements the entire concept of local self-governance. Regarding the proposal to establish the Municipality of Ankaran, the Government thus established that the proposed territory fulfils the conditions for the establishment of a municipality and that the proposal goes in the direction of implementing the Constitutional Court decisions in relation with the unconstitutionality of the Urban Municipality of Koper, and it suggested that the National Assembly postpone a decision on the proposals for the establishment of municipalities and urban municipalities until the competences of regions and municipalities are defined on the basis of an expert analysis, and within this framework, especially the competences of urban municipalities. The Government made a statement regarding the proposal on the establishment of the Municipality of Mirna in the framework of a common opinion on several proposals; therein it found that the proposal satisfies the conditions, but an end must be put to the process of breaking municipalities into smaller parts, as this leads to an increase in the number of municipalities that are unable to fulfil their tasks in accordance with the principles of functional and financial autonomy, and therefore it does not support the further process of establishing municipalities. After carrying out the preliminary procedure, the Government submitted a draft of the EMMBA-G to the National Assembly with a delay with regard to its agenda, which allegedly prevented the National Assembly, as the legislature, from concluding the procedure for establishing new municipalities within the statutory time limit. When this draft law was not adopted at a second vote, two separate draft laws on the establishment of each of the municipalities and the determination of their borders were introduced into the legislative procedure; the National Assembly rejected the draft law on the establishment of the Municipality of Ankaran already upon its first reading, while the consideration of the draft law on the establishment of the Municipality of Mirna came to a standstill in the second reading within the framework of the legislative procedure. The National Assembly is of the opinion that the petitioners’ statements regarding the “finality” and thereby the binding effect of a referendum on the establishment of a municipality are not substantiated. It stresses that the legal nature of such a referendum as consultative and non-binding on the National Assembly must be taken into account, and it also quotes constitutional case law on this issue. From such it allegedly follows that it falls within the constitutional competence of the National Assembly to establish a municipality by law and determine its territory, thereby taking into account the constitutional concept, statutory criteria, and within this framework, the will of the residents (Decision of the Constitutional Court No. U-I-144/94, dated 15 July 1994, Official Gazette RS, No. 45/94, and OdlUS III, 95),[2] as well as the fact that the National Assembly is not unconditionally bound by such a referendum (Decision of the Constitutional Court No. U-I-183/94, dated 9 November 1994, Official Gazette RS, No. 73/94, and OdlUS III, 122).[3] It emphasises that the National Assembly conducted the procedures in accordance with the Local Self-government Act (Official Gazette RS, No. 94/97 – official consolidated text, 76/08, and 79/09 – hereinafter referred to as the LSA) (with the exception of observing the time limit for their conclusion), and that it cannot be bound by its previous decisions on the establishment of municipalities, as each such procedure is allegedly independent (it refers to Decision of the Constitutional Court No. U-I-104/02).[4] With regard to such, the petitioners’ allegations that the EMMBA violates Article 2 and the second paragraph of Article 14 of the Constitution because it did not establish the two municipalities in question are allegedly not substantiated. The National Assembly is also of the opinion that there is no violation of Articles 23 and 25 of the Constitution, as, in light of the opinion of the Government as the executive authority responsible for the implementation of the concept of local self-government, the National Assembly allegedly had the possibility to exercise political discretion and take into account the broader public interest in adopting this law, even though such entails a decision of a concrete nature. Also with regard to this law, legal protection is therefore allegedly ensured in the proceedings for the review of its consistency with the Constitution before the Constitutional Court, which would decide whether there exist substantiated and convincing reasons for “the decision adopted by the National Assembly”.
 
3. In its opinion, the Government emphasises that the process of establishing municipalities in Slovenia resulted in a large number of municipalities, therefore it does not support their further establishment. Continuing to break up municipalities into smaller parts would further diminish their ability to fulfil their tasks in accordance with the principle of functional and financial autonomy, which in particular is not observed by very small municipalities. As a result, the regulation regarding the establishment of new municipalities was already amended by law (the Act Amending the Local Self-Government Act, Official Gazette RS, No. 51/10 – hereinafter referred to as the LSA-R). In relation with the proposals on the establishment of the Municipalities of Ankaran and Mirna, the Government prepared a draft amendment of the EMMBA in which, taking into account Order of the Constitutional Court No. U-I-239/98, dated 15 March 2001 (Official Gazette RS, No. 28/01, and OdlUS X, 51), it found that all constitutional and statutory conditions for the establishment of the municipalities in question are fulfilled. It also forwarded such an opinion regarding the subsequently submitted proposals for the establishment of these municipalities.
 
 
B – I
 
4. By Order No. U-I-137/10, dated 3 September 2010 (Official Gazette RS, No. 72/10), the Constitutional Court accepted the petition for consideration and decided to consider it with absolute priority. At the same time, it suspended the Decree of the President of the National Assembly of the Republic of Slovenia Calling the Regular Elections to Municipal Councils and the Regular Elections of Mayors (Official Gazette RS, No. 60/10 – hereinafter referred to as the Decree calling regular local elections) insofar as it refers to the elections in the Urban Municipality of Koper and the Municipality of Trebnje.
 
5. On 4 November 2010, the Constitutional Court held a public hearing. The petitioners supported the allegation regarding the National Assembly’s arbitrary decision-making in relation to the establishment of the Municipalities of Ankaran and Mirna with documents that allegedly indicate the presence of political bargaining and not only the application of the National Assembly’s political discretion, the territorial completeness and independence of the Ankaran settlement, the fact that the authorities of the Urban Municipality of Koper neglect the Ankaran settlement, the support of the Italian national community, and the initial support of the Municipality of Trebnje, which was allegedly withdrawn as a result of the subsequent political influence of the authorities of the Urban Municipality of Koper. The representative of the National Assembly stated that in the preliminary proceedings the National Assembly adopted the assessment that several territories fulfilled the conditions for the establishment of a municipality, however due to political influence it allegedly called referenda only on the two territories in question and not on the other territories. Upon reconsideration [of this matter] on the basis of a request submitted by the National Council that it again decide on the EMMBA-G in new proceedings, the majority of the National Assembly, in accordance with the positions and the warnings of the Government, allegedly realised that decisions in the direction of breaking municipalities into smaller parts are no longer feasible. The Government reiterated its assessment that Slovenia has a large number of municipalities, some of which are not able to perform their tasks due to their small size, and assessed that the two territories at issue fulfil the statutory and constitutional conditions for the establishment of a municipality. The representatives of the Urban Municipality of Koper stressed that there is neither a constitutional right to establish a municipality nor a constitutional concept of a municipality, and that the establishment of the Ankaran Municipality would be unconstitutional; such is allegedly also substantiated by the expert opinions submitted at the public hearing.[5] The establishment of a municipality is allegedly a matter of the National Assembly’s political discretion and if its decisions were bound in any manner it would also entail an impediment to the functioning of the National Council of the Republic of Slovenia. The representatives of the Municipality of Trebnje objected to the allegations regarding the withdrawn support and stated they had problems due to the suspended elections. The replies to the questions of the Constitutional Court judges showed that when the National Assembly decided again [on the draft Act], the Government’s new political concept of local self-government prevailed as a broader interest, the Government was caught between political and expert assessments of the proposals on the establishment of new municipalities, and that it determined that the proposals then in procedure which had successfully completed the preliminary stage were to be concluded according to the rules of the same procedure that was in force at the time of their submission, as well as that in the event of the establishment of the Municipality of Ankaran the special rights of the members of the Italian national community in accordance with the Constitution and the law would be guaranteed.
 
 
B – II
 
6. The fundamental question that the Constitutional Court must answer in the case at issue is whether the National Assembly may decide not to adopt a law after calling a referendum in which the residents [of part of the municipality] decided in favour of establishing a municipality. Before this question can be answered, the substance of the concept of local self-government, as guaranteed by the Constitution (Article 9), and of a municipality, in the framework of which the residents of Slovenia exercise the former (Article 138 of the Constitution), must be defined.
 
7. Already in Decision No. U-I-13/94, dated 21 January 1994 (Official Gazette RS, No. 6/94, and OdlUS III, 8), the Constitutional Court stated the following: “Although the Slovene Constitution does not explicitly refer to the right to local self-government in the chapter on fundamental rights and freedoms, the principle of local self-government was incorporated into the fundamental provisions of the Constitution and defined in more detail in a separate chapter on local and other forms of self-government. The ‘right to local self-government’, however, is inherent in the fundamental constitutional guarantee of local self-government (‘Local self-government shall be guaranteed in Slovenia’, Article 9 of the Constitution) as the institutional framework for deciding on local public affairs, on the one hand, and in the fundamental constitutional right of every citizen to participate in the management of public affairs (Article 44 of the Constitution), on the other.” It especially emphasised that the process of the deconstruction of the old communes or the establishment of new municipalities entails a process “in the sense of an ‘upward reform’ based on the democratically expressed will of citizens regarding the territory in which they wish to establish ‘their’ municipality as a natural and functional local community.” It may be established that from the launch of the reform of local self-government the Constitutional Court understood such as a process in which the main role is played by the persons residing in a particular territory.
 
8. In Decision No. U-I-90/94, dated 20 May 1994 (Official Gazette RS, No. 29/94, and OdlUS III, 58), the Constitutional Court rejected the claim that “the people may freely decide on the size of a municipality in a referendum.” It further stated the following: “The establishment of municipalities is the basic condition for the actual exercise of local self-government. In Chapter V a), the Constitution namely defines the status of a municipality, an urban municipality, and a region as local communities (Articles 138 through 144). The fundamental local community is a municipality, whose constitutional concept is conditioned by (1) the common needs and interests of the (2) residents of (3) one or a number of settlements (4) who participate in the management of public affairs of a local nature (5) independently, i.e. self-governing in relation to the state. A municipality is therefore a residential community of persons living in the territory of one settlement or a number of interconnected settlements. It is particularly characterised by territorial links that are the basis for the formation of a network of interpersonal and neighbourly relations and the awareness of belonging to a municipality as the fundamental territorial community.” It again emphasised that “[s]uch entails the process of the establishment of new municipalities on the basis of the democratically expressed will of the people as to the local territory where they would like to establish a municipality as a natural and functional local community.” In Decision No. U-I-85/94, dated 20 May 1994 (Official Gazette RS, No. 29/94, and OdlUS III, 57), the Constitutional Court referred to Decision No. U-I-90/94 regarding the definition of the concept of a municipality and explicitly pointed out “territorial links” as an essential element of the constitutional concept of a municipality that the National Assembly must consider when establishing municipalities.
 
9. The Constitutional Court defined the substance of the right to local self-government most clearly in Decision No. U-I-322/98, dated 15 March 2001 (Official Gazette RS, No. 28/01, and OdlUS X, 44). After quoting Article 9 and the third paragraph of Article 139 of the Constitution, it stated that “[t]he Constitution guarantees the right to local self-government that belongs to the residents of a particular territory. It authorises the National Assembly to establish municipalities, but only after the will of the residents has been established,” and it proceeds by stating that “[t]he authorised petitioners are determined very broadly, so as to allow the residents to exercise their right to local self-government (their right to establish municipalities) to the greatest possible extent.” It follows from this Decision that the Constitutional Court also understood the constitutional right to local self-government as the right of the residents living in a particular territory to exercise such right in a municipality of their “own”. Such is also indicated by the requirement determined by the same Decision that the procedure for the establishment of a municipality must be regulated in such a manner so as to prevent the potential arbitrariness of the National Assembly in determining the constitutional and statutory conditions for the establishment of a municipality and that judicial protection against the decisions of the National Assembly must be provided. Arbitrary conduct of the National Assembly preventing the residents of a particular territory from exercising their constitutional right to express their will to establish a municipality in a referendum would consequently also entail an interference with their constitutional right to local self-government.
 
10. Order of the Constitutional Court No. U-I-254/06, dated 10 April 2008, entails a certain divergence from the position expressed in Decision No. U-I-322/98 and a clearer answer to the question of whether the constitutional right to local self-government also entails the right to one’s own municipality. The Order states the following: “It follows from the constitutional concept of a municipality (the second paragraph of Article 139, the first paragraph of Article 140, and Article 142 of the Constitution) that local self-government is the right of local authorities to manage common local affairs. Although the establishment of a municipality is an essential condition for the exercise of local self-government, such does not entail that the legislature is not entitled to determine the criteria (conditions) and the procedure for the establishment (and changes in the boundaries) of municipalities […]. Therefore the provisions of Articles 138 and 139 cannot be interpreted in the sense that they guarantee the residents of Slovenia the right to their own municipality, but only the right to exercise local self-government in a municipality that is established in accordance with the conditions and according to the procedure determined by law.”
 
11. On the basis of the constitutional provisions regarding local self-government and considering the Constitutional Court decisions that also defined the substance of these provisions, the legislature determined the conditions and procedure for the establishment of municipalities. The procedure can be divided into two parts (two stages). The first part is initiated by a petition or proposal for the establishment of a new municipality and is concluded by a decision of the National Assembly on whether or not an individual proposal fulfils the constitutional and statutory conditions for the establishment of a municipality, and, if these conditions are fulfilled, a referendum is carried out in which the residents express their will to establish a municipality. If the proposal does not fulfil the conditions, the procedure is concluded by an order against which judicial protection is guaranteed in instances of potential arbitrary conduct of the National Assembly (the second and third paragraphs of Article 14a of the LSA). “The requirement that arbitrariness must be prevented at all levels of the legal decision-making process, especially when it could threaten rights safeguarded by the Constitution, is consistent with the principles of a state governed by the rule of law.” (Decision of the Constitutional Court No. U-I-322/98.) If the National Assembly acted arbitrarily in making this decision, it would prevent the residents from expressing their will to establish a municipality in a referendum and such would also entail an interference with the right to local self-government (Decision No. U-I-322/98.) The holding of a referendum determining the will of the residents is a constitutional condition for the second part of the procedure for the establishment of a municipality, i.e. the initiation of the procedure for the adoption of the law by which the municipality will be established. It is not possible to establish a municipality or achieve a change in the territories of municipalities without carrying out a referendum (held by the Constitutional Court in Decision No. U-I-285/98, dated 17 September 1998, Official Gazette RS, No. 67/98, and OdlUS VII, 160). Before the referendum is carried out, all questions in relation to the fulfilment or non-fulfilment of the constitutional and statutory conditions for the establishment of a municipality have to be resolved and also, in a potential judicial dispute, all potentially disputable questions have to be resolved and potential unconstitutionalities and illegalities have to be remedied. Legal protection must therefore be regulated in such a manner that it will effectively protect the constitutional rights and legal position of the participants in the procedure (See Decision of the Constitutional Court No. U-I-322/98). In the second part of the procedure, i.e. the procedure for the adoption of the law by which a municipality is established, the National Assembly does not decide on whether the conditions for the establishment of a municipality or for a change in its territory are fulfilled. In proceedings to review the potential unconstitutionality of the law by which municipalities are established or their territories are changed and to review the constitutionality of the procedure in which the law was adopted, only violations that were committed in the legislative procedure may be assessed, and not violations committed in the preliminary procedure, against which special legal protection is provided (See Order of the Constitutional Court No. U-I-239/98).
 
12. A municipality is established by law following a referendum by which the will of the residents in a given territory is established (the third paragraph of Article 139 of the Constitution). The Constitutional Court has been considering the question of the legal nature of the mentioned referendum since the launch of the implementation of local self-government. Thus already in Decision No. U-I-85/94 it stated the following: “The third paragraph of Article 139 of the Constitution requires the legislature only to carry out a referendum to ‘establish the will of the people in a certain territory’ before establishing new municipalities, without thereby defining the term ‘territory’ and without explicitly binding the legislature to observe such will. In accordance with the spirit of this constitutional provision, by the first paragraph of Article 14 of the LSA the legislature bound itself to establish (by law) the territories of municipalities ‘in accordance with the will expressed [...] in a referendum’ – of course, provided such will is not contrary to the letter and spirit of the constitutional provisions regarding local self-government, since the legislature must above all else abide by the Constitution.” In Decision No. U-I-144/94, by which it abrogated the “self-imposed restriction” under Article 14 of the LSA in force at that time, the Constitutional Court repeated the position from the abovementioned Decision. “The third paragraph of Article 139 of the Constitution, however, does not prescribe such referendum [with binding effect], but it requires that prior to determining the territory of a municipality by law the will of the residents be determined in a referendum. It is, however, within the constitutionally defined sphere of competence of the National Assembly to establish a municipality by law and determine its territory, thereby taking into account the constitutional concept, statutory criteria, and within such framework the will of the residents.” And it offered the National Assembly the following practical instruction: “The will expressed in a referendum by the population of the entire referendum area as well as by the residents of its individual parts will have to be taken into account insofar as the municipality established on its basis will conform to the constitutional concept of local self-government and statutory provisions.” A similar position, which the Constitutional Court developed further, is found in Decision No. U-I-183/94: “Referenda in the sense of Article 139 of the Constitution express the will of the residents of a particular territory which is not necessarily consistent with the interests of adjacent territories and wider public interests, which the legislature must take into consideration in defining such territorial division of the state as will enable not only the implementation of local self-government but also the fulfilment of those administrative tasks of the state which the latter will exercise through municipalities and the powers of the state vested in them. Therefore, the Constitution provides for a consultative referendum, which leaves the final determination of the territory of a municipality to the legislature. In determining the territory of a municipality the legislature is thus not bound by the will of the residents expressed in a referendum in an absolute or unconditional manner.” Thereby the Constitutional Court explicitly underlined that “constitutional authorisations could be exceeded if the National Assembly failed to establish a municipality in a territory which fulfils the constitutional and statutory conditions and whose residents voted in favour of establishing their own municipality.”
 
13. In Decision No. U-I-294/98, the Constitutional Court adopted a very clear position on whether the National Assembly is bound [by the result of a referendum], namely: “When establishing municipalities and changing their territories, the National Assembly is bound by the will of the voters expressed in a referendum regarding the establishment of a municipality or a change in its territory – except in two instances:
– when respecting the will of the voters expressed in a referendum would lead to the establishment of a municipality that would not be in accordance with the constitutional and statutory provisions on municipalities, and
– when it is objectively not possible to respect the will of the voters expressed in a referendum due to the conflicting results of referenda.
Conduct contrary to the will of the voters expressed in a referendum also in other instances would entail a violation of the principle that Slovenia is a democratic republic (Article 1 of the Constitution), the principle that in Slovenia power is vested in the people (the second paragraph of Article 3 of the Constitution), the right to participate in the management of public affairs (Article 44 of the Constitution), and the constitutional provisions regarding local self-government (Article 9, Article 138 of the Constitution).” It repeated the cited position in Decision No. U-I-288/98, dated 14 October 1998 (OdlUS VII, 189), and most recently in Order No. U-I-246/06, dated 10 May 2007.
 
14. In the course of their implementation, the constitutional provisions that refer to local self-government (in particular, Articles 9, 138, and 139 of the Constitution) must be applied in a manner that derives from Constitutional Court decisions. That also the legislature is bound by the interpretation of the Constitutional Court follows already from the foundations of the principle of the separation of powers. The authorisation of the Constitutional Court to provide interpretations of constitutional provisions that have legally binding effects derives from its constitutionally defined position. It follows from the hitherto interpretations of the Constitutional Court that Articles 138 and 139 must be interpreted as ensuring the residents of Slovenia the right to exercise local self-government in a municipality established in accordance with the conditions and according to the procedure determined by law, and that the National Assembly is – regarding the establishment of municipalities and any change in their territory – bound by the will of the voters expressed in a referendum on the establishment of a municipality or a change in its territory, except in two instances: when respecting the will of the voters expressed in a referendum would lead to the establishment of a municipality that would not be in accordance with the constitutional and statutory provisions on municipalities and when it is objectively not possible to respect the will of the voters expressed in a referendum due to the conflicting results of referenda. In its decisions, the Constitutional Court emphasised that the National Assembly was entitled to determine the conditions under which it assessed specific proposals for the establishment of municipalities, but the principle of a state governed by the rule of law requires that the legislature follow the rules it has itself created and that it does not act arbitrarily in its decisions regarding the establishment of municipalities (See Decision No. U-I-103/02). Conduct contrary to these principles entails a violation of the principle of a state governed by the rule of law (Article 2 of the Constitution) and the general principle of equality before the law (the second paragraph of Article 14 of the Constitution).
 
15. The following may be derived from the presented positions of the Constitutional Court:
– when deciding on proposals for the establishment of municipalities, the National Assembly has to respect the constitutional concept of local self-government and the statutory conditions and procedure it itself determined. Such entails that if the National Assembly establishes that the conditions are not fulfilled, it is neither obliged to establish a municipality nor to call a referendum. If the National Assembly, however, establishes that the conditions are fulfilled, and the residents express their will to establish a municipality in a particular territory in a referendum and there exist no reasons to disregard the will expressed in such manner, the National Assembly is required to establish the municipality;
– the National Assembly is required to respect the will of the residents to establish a municipality in a particular territory expressed in a referendum unless it has substantiated (constitutional law) reasons to act in a different manner;
– it may not act arbitrarily in deciding on the establishment of municipalities.
 
 
B – III
 
16. The procedure for the establishment of the Municipality of Ankaran through its secession from the Urban Municipality of Koper and of the Municipality of Mirna through its secession from the Municipality of Trebnje was conducted in accordance with the LSA in force before its amendment (LSA-R) and as it continues to govern the two proposed municipalities according to the transitional provisions (Article 8 of the LSA-R). Such entails that the provision of the LSA that enabled the establishment of a new municipality through the secession of a part of a municipality from an existing municipality (the third paragraph of Article 15) is still applicable to the two proposed new municipalities. The National Assembly found that both proposed territories fulfilled the constitutional and statutory conditions for the establishment of a municipality and following such conclusion it called a referendum in which the residents of the two territories expressed their majority will that they wish to establish a new municipality. No judicial dispute was initiated against the Decree calling the referendum. Following the referendum, the National Assembly also established the two municipalities by law. The National Council requested that the National Assembly vote again [on this matter]. In the new vote, however, the law was not adopted. The draft law for the establishment of the Municipality of Ankaran was also rejected in a newly initiated procedure, while the draft law for the establishment of the Municipality of Mirna came to a standstill in the legislative procedure.
 
17. As has already been mentioned, the petitioners’ main allegation is that the National Assembly acted arbitrarily when it did not establish the two municipalities, even though in the relevant procedure it itself found that both territories fulfilled all constitutional and statutory conditions for the establishment of a municipality, which in the case at issue entails a violation of the second paragraph of Article 14 and Article 2 of the Constitution, and as a consequence it also violated Articles 9, 138, and 139 of the Constitution. The National Assembly’s objection is that it is completely free when deciding on the establishment of a municipality, as such concerns full political discretion. However, at the public hearing it added that it also had the right to change its mind. The representative of the Municipality of Koper argued above all that there is no constitutional right to one’s own municipality, that the referendum on the establishment of a municipality is of a consultative nature, and that the proposed new Municipality of Ankaran also otherwise does not fulfil the conditions for a municipality.
 
18. As regards the objections that the proposed Ankaran municipality does not fulfil the constitutional and statutory conditions, attention should be drawn to the position of the Constitutional Court that holds that all questions in relation to the fulfilment of such conditions have to be resolved in the procedure leading to the calling of a referendum, also through the use of judicial protection. The Urban Municipality of Koper could have challenged the Decree calling the referendum.[6] Therefore, the allegation of the non-fulfilment of the conditions cannot be taken into account. By Order No. U-I-239/98, the Constitutional Court adopted the clear position that “in the procedure for the adoption of a law the National Assembly does not establish the fulfilment of the conditions for the establishment of a municipality or a change in its territory, but proceeds from the results of the referendum in accordance with Articles 25 and 26 of the [Act regulating the procedure for establishing municipalities and municipal boundaries]. In proceedings to review a potential unconstitutionality of the law by which municipalities are established or their territories are changed and to review the constitutionality of the procedure in which the law was adopted it is only possible to assess violations committed in the legislative procedure, and not violations committed in the preliminary procedure, for which special legal protection is prescribed.”
 
19. The objection that the right to one’s own municipality does not exist and that the National Assembly is completely free in deciding upon the establishment of a new municipality, even though it itself established that the constitutional and statutory conditions for the establishment of the two new municipalities were fulfilled, and in spite of the affirmative will expressed by the residents, is also not substantiated. Such position is not consistent with Articles 138 and 139 of the Constitution. The National Assembly is not obligated to establish a new municipality if it finds that the constitutional and statutory conditions for its establishment are not fulfilled. However, as the National Assembly established that the constitutional and statutory conditions were fulfilled, and following the fulfilment of the last condition – the affirmative will of the residents expressed in the referendum – and the finding that no reasons exist due to which it would not be required to take into account the result of the referendum, it should have established the two municipalities, in accordance with the procedure it itself had prescribed. The National Assembly’s position that in adopting a law by which it establishes a municipality it is bound by neither the result of a referendum nor the finding from the preliminary procedure that the conditions are fulfilled, in connection with the concurrent position that legal protection against such law is guaranteed before the Constitutional Court, which will assess primarily if substantiated and convincing reasons for the decision adopted by the National Assembly derive from the entire procedural documentation, is unclear and even contradictory. What these reasons may be and why the Constitutional Court would establish them at all, since, given the National Assembly’s position that it is bound by neither the result of the referendum nor by the findings from the preliminary procedure, the National Assembly would not even be required to state them, is not evident from the National Assembly's reply.
 
20. Already in Decision No. U-I-13/94 the Constitutional Court stated that it is a task of a state governed by the rule of law to enable residents of municipalities to express their interests and exercise their appropriately determined will in a legally regulated manner. By a special law the National Assembly prescribed the conditions and procedure for the establishment of a municipality. Following the prescribed procedure conducted by the National Assembly, a municipality is established by a law. It is true that the legislature is completely autonomous when adopting laws by which it regulates social relations in a general and abstract manner, and bound only by the Constitution. It undoubtedly had such broad autonomy regarding the establishment of municipalities when adopting the laws by which it defined, in conformity with the Constitution, the conditions and procedure for the establishment of municipalities. However, it does not have such broad autonomy when adopting a law by which it decides on the establishment of a municipality.
 
21. “The establishment of a municipality by the constitutionally and statutorily defined procedure is an essential condition for the exercise of the constitutional right to local self-government.[7] It is the constitutional right of the residents living in a particular territory who are connected by common needs and interests to govern local affairs by themselves.”[8] An integral part of the right to local self-government is also the possibility of the residents of a particular territory to exercise this right in a municipality that they establish independently in accordance with the statutory conditions. That is the intention of the constitutional provision providing that the National Assembly establish a municipality following the prior determination of the will of the residents. By a decision adopted at the end of such procedure, the National Assembly decides precisely on this constitutional right, namely on the basis of the finding that according to the procedure that was carried out, the obtained documents, and the established facts, as well as according to the result of the referendum, the constitutional and statutory conditions for the establishment of a municipality as the fundamental self-governing local community are fulfilled. Therefore, such does not entail an “abstract right to a municipality” in whatever territory, but only in the territory that fulfils the constitutional and statutory conditions for the establishment of a municipality.
 
22. According to an explicit provision of the Constitution, the National Assembly adopts the decision on the establishment of a municipality in the form of a law. However, such constitutional competence of the National Assembly does not change the fact that, despite the prescribed formal form, such in substance entails a decision on a constitutional right in a concrete, individual case following the prior execution of the procedure prescribed by the Constitution and the LSA. Therefore, in such an instance the legislature, despite using the form of a law, nevertheless does not have a wide margin of appreciation in the sense of political discretionary decision-making, so as to be able to – having drawn its democratic legitimacy from general elections – decide on whether to establish a municipality or not only on the basis of a value-oriented and interest-oriented assessment. The margin of the legislature’s appreciation is present in the general and abstract legal regulation of rights and obligations, as only there – taking into account the constitutional framework – may the democratically elected legislature freely decide on the most appropriate legal regulation. In deciding on whether in a concrete case the residents of a particular territory may exercise their constitutional right to local self-government in the framework of a new municipality, however, the legislature enjoys less freedom, as it has to respect the rules that it itself defined. As soon as the legislature defined the conditions for the exercise of its constitutional competence to establish municipalities, which have to be fulfilled and the existence of which it establishes itself, and the special procedure, in accordance with the principle of legality and trust in the law as well as the general principle of equality, it also had to observe these rules.[9] The statutory regulation of the conditions and the procedure for the establishment of municipalities as well as the guarantee of legal protection in such procedure require not only that the regulation be observed, including by the legislature (Article 2 of the Constitution), but also that all residents (petitioners) who want to establish a municipality in a particular territory be treated equally (the second paragraph of Article 14 of the Constitution). The principle of equality of course does not require that the National Assembly break the law (i.e. that it establish a municipality even though the conditions for such are not fulfilled), it does however require that it apply the prescribed conditions in all cases equally. If a territory fulfils the conditions, it must act in the same manner as it acted in other cases where the conditions had been fulfilled. Citizens, in the case at issue, the residents of the two territories in which the new municipalities are to be established, legitimately expected that the legislature would adhere to the defined rules and would, provided that all prescribed conditions are fulfilled, establish a municipality, as it had done in similar cases. Conduct contrary to the described principles entails a violation of the principle of legality and trust in the law (Article 2 of the Constitution), as well as the general principle of equality under the second paragraph of Article 14 of the Constitution.
 
23. As the National Assembly did not establish the Municipalities of Ankaran and Mirna, it acted arbitrarily and thereby violated the general principle of equality (the second paragraph of Article 14 of the Constitution) and the principle of legality and trust in the law (Article 2 of the Constitution). The refusal to establish the two municipalities consequently also entails a violation of Articles 138 and 139 of the Constitution. The Constitutional Court therefore decided that the EMMBA is inconsistent with the Constitution (point 1 of the operative provisions).
 
 
B – IV
 
24. The National Assembly is required to remedy the established inconsistency with the Constitution within a period of two months (point 2 of the operative provisions). In determining the time limit for remedying the inconsistency, the Constitutional Court considered that the content required to remedy the law is already known and it is not necessary to carry out a new preliminary procedure for the establishment of the fulfilment of the constitutional and statutory conditions or to carry out a referendum, but only the legislative procedure for adopting an amendment to the EMMBA. The transitional provision of the LSA-R (Article 8) can also be understood in such a manner, as it determines that procedures regarding proposals for the establishment of new municipalities regarding which a referendum had been called before this Act (the LSA-R) was adopted are to be continued and concluded under the provisions that governed these procedures before the entry into force of this Act. The Act defines the “calling of a referendum” as a condition for the application of the previously valid law, not that “a referendum had already been carried out”. In the case at issue, the results of the referendum had even already been proclaimed. The Act, however, does not define the term “conclusion of the procedures”. However, as it links the application of the LSA-R or the law in force before the amendment to the “calling of a referendum”, which entails the conclusion of the preliminary procedure, it is absolutely clear that the term “conclusion of the procedure” refers to the legislative procedure. Therefore, all actions carried out in the preliminary procedure, including the referendum, remain legally valid. Thereby it also has to be emphasised that the established inconsistencies refer only to the legislative procedure, not the preliminary procedure.
 
 
B – V
 
25. The Constitutional Court found that the EMMBA is inconsistent with the Constitution and ordered that it be harmonised with the Constitution, but such does not suffice for remedying the established unconstitutionality. The goal of procedures for the establishment of a municipality is the exercise of local self-government in a particular territory, which, however, may only be ensured through elections of mayors and municipal councillors, which in essence entail the final stage before the constitution of a municipality. Therefore, the EMMBA is directly linked to the Local Elections Act (Official Gazette RS, No. 64/07 – official consolidated text – hereinafter referred to as the LEA). The regulation by which the execution of these elections is ensured is the decree calling the regular local elections that is issued by the President of the National Assembly within the time limits defined by statute.[10] Therefore, with regard to the established unconstitutionality of the EMMBA, on the basis of the mandate under Article 30 of the Constitutional Court Act (Official Gazette RS, No. 64/07 – official consolidated text – hereinafter referred to as the CCA), the Constitutional Court also reviewed the constitutionality of the Decree calling the regular local elections insofar as it refers to elections in the Urban Municipality of Koper and the Municipality of Trebnje. By Order No. U-I-137/10, dated 3 September 2010, the Constitutional Court suspended the execution of the mentioned Decree insofar as it refers to the Urban Municipality of Koper and the Municipality of Trebnje. As the Constitutional Court decided that the EMMBA is unconstitutional, because it did not establish the new municipalities, the Decree calling the regular local elections is also unconstitutional in the part in which its execution was suspended, and thus the elections in the Urban Municipality of Koper and the Municipality of Trebnje were not carried out. By carrying out the elections in the Urban Municipality of Koper and the Municipality of Trebnje without previously establishing the new municipalities, the unconstitutional state of affairs established by this Decision would be perpetuated and the residents of the new municipalities would be prevented from exercising local self-government therein, which would entail a violation of the principle of legality and trust in the law under Article 2 of the Constitution. Therefore, as in the Urban Municipality of Koper and the Municipality of Trebnje certain acts in relation to elections have already been carried out, the Constitutional Court annulled the Decree calling the regular local elections insofar as it refers to the elections to the authorities of the Urban Municipality of Koper and the Municipality of Trebnje (point 3 of the operative provisions). Such entails that also all actions carried out in relation to the elections on the basis of this part of the Decree calling the regular local elections and all acts adopted on its basis also lost their legal validity.
 
 
B – VI
 
26. After the EMMBA is harmonised with the Constitution, local elections have to be carried out as soon as possible in the new municipalities that will be established by their secession from the Urban Municipality of Koper and the Municipality of Trebnje, as well as in the latter two municipalities. On the basis of Article 40 of the CCA, the Constitutional Court thus determined that within a time period of 20 days following the entry into force of the law the President of the National Assembly is to call local elections in both newly established municipalities as well as the Urban Municipality of Koper and the Municipality of Trebnje in accordance with the rules for early elections (point 4 of the operative provisions). The Constitutional Court chose such a manner of implementation [of its Decision] because the time limit the LSA defines for the conclusion of the procedures had already expired. Delaying the implementation of this Decision would, however, entail disregard for a Constitutional Court decision and therefore a violation of Articles 2 and 3 of the Constitution as well as a perpetuation of the established unconstitutionality.
 
 
B – VII
 
27. In order to ensure legal certainty regarding the functioning of the Urban Municipality of Koper and the Municipality of Trebnje in the period until the local elections are carried out on the basis of the EMMBA, which will be harmonised with the Constitution, in spite of Articles 41 and 42 of the LSA,[11] an extension of the terms of office [of the members of the municipal councils and the mayors of these municipalities] was determined, namely until the first session of the newly elected municipal councils of these municipalities. In this period the members of the municipal councils and the mayors of these municipalities are to retain their regular mandates to decide on all affairs within the competence of the municipalities (point 5 of the operative provisions).
 
28. The Constitutional Court is aware that the periodic nature of elections is one of the more important elements of the right to vote and the principle of democracy. However, the extension of the [mentioned] terms of office in the Urban Municipality of Koper and the Municipality of Trebnje is necessary in order to ensure that the residents who proposed the establishment of the new municipalities (regarding which the National Assembly in the prescribed procedure determined that all the conditions for their establishment are fulfilled and their residents expressed the will to establish a municipality) can enforce and exercise the right to local self-government, including elections, in a municipality “established in accordance with the conditions and the procedure determined by law”, even though as a result elections will be held after the term of office expires.[12] Making the territory of a municipality consistent with the Constitution without also carrying out elections in the (new) municipality does not entail of itself that the exercise of local self-government is ensured in such a municipality. The residents predominantly exercise the rights (competences) of local self-government through elected authorities (the municipal council and the mayor). Therefore, the Constitutional Court deems that a shorter delay in the holding of elections does not entail an inadmissible interference with the right to vote, and in no instance does it cause its hollowing out.
 
 
C
 
29. The Constitutional Court adopted this Decision on the basis of Article 40, the second paragraph of Article 45, and Article 48 of the CCA, as well as the third indent of the third paragraph of Article 46 of the Rules of Procedure of the Constitutional Court (Official Gazette RS, Nos. 86/07, and 54/10), composed of: Dr Ernest Petrič, President, and Judges Dr Mitja Deisinger, Dr Etelka Korpič – Horvat, Mag. Miroslav Mozetič, Jasna Pogačar, Mag. Jadranka Sovdat, Jože Tratnik, and Jan Zobec. It adopted the Decision by seven votes against one. Judge Sovdat, who submitted a dissenting opinion, voted against. Judge Petrič submitted a concurring opinion.
 
 
                                                                       Dr Ernest Petrič
                                                                                                                             President
 
 
 
Endnotes:
[1] Prepared by C. Ribičič with the cooperation of I. Kaučič and L. Ude and through consultations with F. Grad, Institute for Comparative Law at the Faculty of Law in Ljubljana, 17 May 2010.
[2] In this Decision the Constitutional Court abrogated the first and third paragraphs of Article 14 of the Local Self-government Act (Official Gazette RS, No. 72/93), according to which the National Assembly was required to establish a municipality in accordance with the will expressed by the adult residents who voted in a referendum, because it deemed that it is possible to derive a process from such by which local communities could be created in Slovenia that do not fulfil the constitutional and statutory conditions for their establishment. 
[3] The Constitutional Court established that Articles 2 and 3 of the EMMBA are inconsistent with the Constitution as they establish municipalities that do not fulfil the constitutional and statutory requirements.
[4] Correctly: Decision of the Constitutional Court No. U-I-103/02, dated 18 April 2002, Official Gazette RS, No. 39/02, and OdlUS XI, 64, which drew attention to the fact that the conduct of the National Assembly must always be consistent with the Constitution and the laws, regardless of its prior illegal conduct (since it led to the establishment of municipalities that were not consistent with the constitutional concept of a municipality). 
[5] The expert opinion was prepared by M. Cerar, J. Čebulj, I. Kristan, M. Senčur, J. Šmidovnik, and S. Vlaj.
[6] See Decision of the Constitutional Court No. U-I-322/98.
[7] Held by the Constitutional Court in Order No. U-I-254/06, dated 10 April 2008, para. 5 of the reasoning.
[8] See Decision of the Constitutional Court No. U-I-163/99, dated 23 September 1999, Official Gazette RS, No. 80/99, and OdlUS VIII, 209, para. 13 of the reasoning.
[9] See also Decision of the Constitutional Court No. U-I-103/02.
[10] See Order of the Constitutional Court No. U-I-403/98, dated 19 November 1998, OdlUS VII, 206, regarding the suspended regular elections in the Urban Municipality of Koper.
[11] Article 41 of the LSA determines that the four-year term of office of members of a municipal council lasts until the first session of the newly elected council, which applies to both regular and early elections, as well as elections that, for whatever reason, are carried out later than the regular elections to municipal councils. Article 42 of the LSA determines that the four-year term of office of mayor lasts until the first session of the newly elected council, which applies to both regular and early elections, as well as elections that, for whatever reason, are carried out later than the regular elections to municipal councils.
[12] See Decision of the Constitutional Court No. U-I-254/06.
 
 
U-I-137/10-50
26 November 2010
 
 
 
The Dissenting Opinion of Judge Mag. Jadranka Sovdat
 
 
1. By the constitutional complaint the petitioners attacked the conduct of the National Assembly of the Republic of Slovenia in the procedure for the adoption of an amendment to the Establishment of Municipalities and Municipal Boundaries Act and the veto of the National Council of the Republic of Slovenia regarding the amendment of this law that had initially been adopted by the National Assembly. At the same time, they submitted a petition by which they challenge the Establishment of Municipalities and Municipal Boundaries Act (Official Gazette RS, No. 108/06 – official consolidated text – hereinafter referred to as the EMMBA) alleging an unconstitutional legal gap, as the law does not include the Municipalities of Ankaran and Mirna, and, subsequently, the Decree calling the regular local elections, published in the Official Gazette RS, No. 60/10. The Constitutional Court has already decided on the submitted constitutional complaint and rejected it by Panel Order No. Up-604/10, dated 13 September 2010, as the conduct of the National Assembly and the National Council's veto in the legislative procedure are not individual acts against which a constitutional complaint is allowed. As the constitutional complaint has already been decided, the subject matter of these proceedings is thus only deciding on the constitutionality of the EMMBA on the grounds of the alleged unconstitutional legal gap, as it does not contain the Municipalities of Ankaran and Mirna, whereby the decision-making process was initiated by Order of the Constitutional Court No. U-I-137/10, dated 3 September 2010, by which the petition was accepted for consideration. As by this Order the Constitutional Court suspended the implementation of the Decree of the President of the National Assembly calling the regular elections insofar as it refers to the Urban Municipality of Koper and the Municipality of Mirna, the subject matter of this decision-making process is also the petitioners' proposal to assess the constitutionality of this regulation, provided the Constitutional Court deemed such to be necessary.
 
2. I did not participate in the adoption of the Order on the acceptance of the petition and the decision to suspend the holding of elections in the mentioned municipalities. Such of course is not an obstacle that would prevent me from joining the majority in this Decision. However, reasons of constitutional law, which in my opinion oppose the arguments by which the majority decision substantiates the unconstitutionality of the Act, do not permit me to do so. In addition, I cannot agree with the interference with the right to vote.
 
 
I
 
3. Article 9 of the Constitution determines that local self-government is guaranteed in Slovenia and Article 138 determines that the residents of Slovenia exercise local self-government in municipalities and other local communities. The second paragraph of Article 139 defines the territorial aspect of a municipality when it determines that its territory encompasses one or more settlements that are connected by the common needs and interests of their residents. The Constitution defines the other aspects[1] of local self-government, insofar as it defines them, in Articles 140 and 142. The European Charter of Local Self-Government (Official Gazette RS, No. 57/96, MP, No. 15/96 – hereinafter referred to as the ECLSG) defines the concept of local self-government in the first paragraph of Article 3 as “the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.” The second paragraph of this Article inter alia determines that this right is exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal,[2] and universal suffrage which may have executive organs responsible to them.
 
4. According to the third paragraph of Article 139 of the Constitution, a municipality is established by law following the prior holding of a referendum by which the will of the residents of a particular territory is determined, whereby the law also determines the territory of the municipality. The ECLSG refers to the territory of municipalities only insofar as it determines in Article 5 that the boundaries of local governments should not be changed without prior consultation with the local communities to which they refer, if possible by referendum, where such is permitted by law. At the time of its entry into force, the third paragraph of Article 139 of the Constitution had a special meaning in particular due to the fact that on the basis of constitutional provisions local self-government with the competences accorded to it by the Constitution and the ECLSG had yet to be established. The decision in the case at issue also essentially depends on the definition of its content. However, such is not possible without previously clarifying what local self-government in essence is and what the nature of rights and obligations deriving from this constitutionally-defined institution is and who the holder of such is. Understanding the latter namely enables us to understand the former. In comparison to the majority, I hold an essentially different position regarding the former as well as the latter.
 
5. It appears that since the enactment of the constitutional basis for the establishment of local self-government there have been two opposing concepts, whereby according to the first, local self-government is only a public law institution, having rights (only) as such, while according to the second, it is the right of the local residents to manage local public affairs on their own. If the Constitution ensures the second, the question naturally arises whether as an individual living on a particular territory I have the right to demand local self-government, and, if I do, what type of local self-government do I have the right to demand. Do I have a constitutionally protected right to demand a municipality? We thus appear to be dealing with two questions: Is local self-government as “a legal systemic institution that defines the position (status) of the local community”[3] or “a legal systemic quality that has to be explicitly accorded (…) to a local community by an appropriate state act”[4] only the right (and ability) of local governments to manage local public affairs, as is stated in the first paragraph of Article 3 of the ECLSG, namely a right belonging to a local community as an independent entity of public law? Or, does local self-government entail (only or also) the constitutional right of the inhabitants of Slovenia who reside in a particular territory and who are connected by common needs and interests to manage their local affairs on their own in a local community? These questions have been present since the writing of the Constitution and, in light of everything seen thus far, the statement of one of the discussion participants [at a meeting of] the Commission for constitutional questions that such concerns a “great question that will be debated at length by law”[5] has proven to be truly prophetic. Evidently, no clear answers to these questions have been provided until today. Had they been provided, the issue probably would not have been highlighted once again as central in the adoption of the last amendment to the Local Self-government Act.[6] And evidently it is also central in the case at issue. It appears that in spite of numerous Constitutional Court decisions that were adopted in particular in the process of the establishment of municipalities in the function of establishing a system of local self-government and that were especially burdened by the establishment of a so-called network of municipalities, i.e. the question of the territorial division of the state territory in order to ensure local self-government, we have no clear constitutional answers to these questions, which also blurs the constitutional content of the third paragraph of Article 139 of the Constitution. There even appears to be an attempt to resolve the issue of the quality of local self-government through the quantity of municipalities. I am afraid that this process will only continue also after this Decision.
 
6. Let us begin by reviewing the relevant decisions of the Constitutional Court. Its interpretations of Articles 9 and 138 of the Constitution are namely binding on the National Assembly. The Decision in the case at issue refers to them as well. In Decision No. U-I-13/94, dated 21 January 1994 (Official Gazette RS, No. 6/94, and OdlUS III, 8), the Constitutional Court deemed that “the right to local self-government” (also written in quotations in the Decision itself, comment by J. S.) “is the inevitable result of observing the fundamental constitutional guarantee of local self-government under Article 9 of the Constitution as the institutional framework for deciding on local public affairs under Article 44 of the Constitution.” In addition to this definition, the Constitutional Court immediately summarises from the preamble of the ECLSG that local governments are one of the main foundations of every democratic rule, that the right of citizens to participate in the management of public affairs that may be exercised in the most direct manner at the local level is a democratic principle, and it adds the content of the first paragraph of Article 3 of the ECLSG. In Decision No. U-I-90/94, dated 20 May 1994 (Official Gazette RS, No. 29/94, and OdlUS III, 58), when stressing that a municipality is the fundamental local community, the Constitutional Court stated that its constitutional conception is conditioned (emphasis added by J. S.) by 1) common needs and interests 2) of the residents of 3) one or more settlements 4) who participate in the management of public affairs of a local (…) nature 5) independently, i.e. self-governing in relation to the state.[7]
 
7. In my opinion, it already follows from the quoted positions of the Constitutional Court that local self-government is undoubtedly the institutional framework for deciding local public affairs (as the state is the institutional framework for deciding state affairs[8]), whereby self-governance in the performance of public affairs is the right – the right of the local community as an independent entity of public law – by which it will assert and protect itself (in particular) against the state when the latter would inadmissibly interfere with its position as protected by the Constitution. However, this institution is not an end in itself. It is intended to enable the persons who live in a particular territory, to which it is limited, to self-govern local affairs for their benefit – either through direct forms of decision-making or in the manner that is predominantly applied, i.e. through a system of representative democracy with elections, which may also be inferred from the second paragraph of Article 3 of the ECLSG. Therefore, these persons are a constitutive integral element of local self-government and they undoubtedly belong in the legal definition of this institution.[9] Within the framework of such, they exercise their right to participate in the management of public affairs, which the ECLSG defines as a principle and which the Constitution in Article 44 elevated to the level of a human right. However, what is most important thereby is that even though within this framework also (this and other) rights are exercised, local self-government in itself is not yet a human right[10], just as the state is not [a human right], even though (this and all other) rights are exercised within its framework. Thus, also Article 138 does not speak of “the exercise of the right to local self-government”, but of “the exercise of local self-government”. However, we can nevertheless speak of a constitutional (but not human!) right to local self-government. We can speak of a constitutional right to local self-government in the sense that is probably undisputable when we speak of the rights of local communities to self-government in relation to the state. Perhaps we can also speak of it in the sense of the constitutional right of the persons who live in the territory of the Republic of Slovenia to decide on common issues of local importance in a manner that is guaranteed by the institution of local self-government. If we can speak of a constitutional right of persons at all, then, in my opinion, we can do so only in this sense. Namely, if the state, in spite of constitutional provisions, did not establish local self-government at all, but established such only fictitiously, or even abolished it, its citizens could demand that it guarantee them such right – namely that it guarantee them the right to decide local public affairs in the framework of local self-government and not in the framework of the state.
 
8. It is, however, not possible to say that the content of this constitutional right from the viewpoint of an individual also entails that a group of persons in a particular territory has the right to establish “its” local community to which the state shall acknowledge the status of self-government and all competences linked to this characteristic. It is hence not possible to say that from the Constitution there derives “a constitutional right of individuals to their own municipality”. The content of local self-government defined in such a manner, in my opinion, also logically follows from the definitions of the Constitutional Court in Decisions No. U-I-13/94, and No. U-I-90/94. In Decision No. U-I-322/98, after the introductory statement, according to which the competence of the National Assembly derives from the Constitution, as municipalities are established and their territories changed only by law, we may, however, also read the following: “The entitled proposers (in accordance with Article 3 of the [Act regulating the procedure for establishing municipalities and municipal boundaries] in force at that time, comment by J. S.) are, however, determined very broadly so that the residents may exercise their right to local self-government (the right to establish a municipality) to the greatest possible extent.” If in this Decision the Constitutional Court stopped at only this note, we could still, even if with some difficulty due to the addition in the parentheses, speak of an interpretation in one or another manner, but as the Court at the same time required that judicial protection be ensured against decisions of the National Assembly in the preliminary procedure for the determination of the existence of the constitutional and statutory conditions for the establishment of a municipality, this Decision cannot be understood any differently than that it substantially leaned in the direction of local self-government as a right of residents to demand the establishment of a municipality. The Decision in the case at issue clearly confirms such. The constitutional law reasons against such position have already been explained by Judge Ribičič in his separate opinion with regard to Decision No. U-I-322/98. Here I quote from his separate opinion: “The right to local self-government (…) does not entail the right to establish a municipality. I am deeply convinced that such a right cannot be inferred from the third paragraph of Article 139 of the Constitution (…). Article 138 of the Constitution contains a somewhat sterner, even though in my opinion likewise insufficient basis for the right of the residents to establish a municipality (…). The insufficiency of such constitutional basis for constructing the human constitutional right to establish a municipality becomes especially evident if someone attempted to derive from the mentioned constitutional provision a right to establish broader local communities, provinces, regions, or states, which may be regarded as ʻotherʼ, broader local communities.” In his opinion, the denial of the existence of a constitutional right to establish a municipality does not also entail a negation of the right to local self-government, as such may be exercised in different forms and in very diverse manners, and by no means, as he says, “only in the framework of a municipality that is established to suit the image of a local community, a group of persons, or an individual.” I cannot but agree with these constitutional law arguments. We cannot speak of local self-government as a right that guarantees “the possibility of the residents of a particular territory to exercise this right in a municipality that they establish individually in accordance with statutory conditions,” or as “the right of the residents living in a particular territory to exercise this right in ʻtheir ownʼ municipality,” as is stated in the Decision. In my opinion, we can only speak of local self-government as a constitutional right of the people to decide common issues of local importance in a manner as is guaranteed by the institution of local self-government. That is how I see the constitutional law content of local self-government.
 
9. And, in my opinion, this is the content that one must have in mind also when interpreting the third paragraph of Article 139 of the Constitution. According to this provision, a municipality is established by law following a referendum by which the will of the residents in a particular territory is determined; the territory of the municipality is also defined by law. The interpretation of this provision is importantly affected by the legal nature of the referendum it requires. Also with regard to such, let us first have a look at what the Constitutional Court stated regarding this subject. The majority of Constitutional Court decisions [in this area] namely refer precisely to this. In Decision No. U-I-144/94, the Constitutional Court stated that the will of the residents is decisive for the establishment of a municipality, of course provided it is in accordance with the constitutional and statutory concept of a municipality.[11] Thereby, the referendum under the third paragraph of Article 139 is not binding, but merely requires that the National Assembly first establish the will of the voters, “it, however, lies within the competence of the National Assembly to establish a municipality and determine its territory by law, taking into account the constitutional concept, the statutory criteria, and within this framework, the will of the residents.” This position was expressed even more clearly in Decision No. U-I-183/94, dated 9 November 1994 (Official Gazette RS, No. 73/94, and OdlUS III, 122),[12] where the Constitutional Court stated: “Referenda in the sense of Article 139 of the Constitution namely express the will of the residents in a particular territory that is not necessarily consistent with the interests of adjacent territories and the wider public interests, which the legislature must take into consideration in defining such territorial division of the state as will enable not only the implementation of local self-government but also the fulfilment of those administrative tasks of the state which the latter will exercise through municipalities and the powers of the state vested in them. Therefore, the Constitution provides for a consultative referendum that leaves the final determination of the territory of a municipality to the legislature (emphasis added by J. S.).” However, already in this Decision the Constitutional Court added the warning that constitutional authorisations could be exceeded if the National Assembly fails to establish a municipality in a territory which fulfils the constitutional and statutory conditions and whose residents voted in favour of establishing their own municipality. This obiter dictum became the ratio decidendi in Decision No. U-I-294/98, dated 12 October 1998 (Official Gazette RS, No. 72/98, and OdlUS VII, 185), in which the Constitutional Court held that the National Assembly is bound by the will of the voters expressed in a referendum when establishing municipalities and changing their boundaries, except in the following two instances: 1) when respecting the will of the voters expressed in a referendum would lead to the establishment of a municipality that would not meet the constitutional and statutory provisions on municipalities, and 2) when it is objectively not possible to respect the will of the voters expressed in a referendum due to the conflicting results of referenda. Conduct contrary to referenda results also in other instances allegedly entails a violation of Article 1, the first sentence of the second paragraph of Article 3, and Articles 44 and 9 of the Constitution. 
 
10. Is it still possible to say that a referendum is consultative and the result of the referendum is not legally binding on the legislature in accordance with this position when the Constitutional Court in the same breath speaks of a consultative referendum that remains such if the residents decide against the establishment of a municipality or other changes, while the referendum is no longer consultative if the residents of the territory in question (in the event that in the procedure for the establishment of a municipality the legislature deemed that otherwise the conditions for establishing a municipality are fulfilled and that also in the remaining part [of the municipality] the conditions exist for the further existence of a municipality) decide in favour of establishing a municipality? All of a sudden this referendum becomes legally binding on the legislature – from which we could derive that thereby a constitutional obligation to establish a municipality arises for the legislature. Such namely follows from the Constitutional Court position, whereby, if we refer to the case at issue, in my opinion, the third paragraph of Article 15 of the LSA before the adoption of the LSA-R amendment (or even before that, Article 26 of the then valid [Act regulating the procedure for establishing municipalities and municipal boundaries]) did not even require such. The LSA determined that a part of a municipality encompassing the territory of a settlement or a number of neighbouring settlements may secede from the municipality and be established as a new municipality, provided that in a referendum the majority of the voters who voted decide in favour of such and if the remaining part of the municipality also fulfils the conditions for a new municipality. By such statutory provision the legislature bound itself to the obligation not to establish a municipality in instances when it deemed that the conditions for such are fulfilled while such is opposed by the will of the residents in the affected territory. By means of its interpretation, however, the Constitutional Court in addition bound it to the obligation to establish a municipality when the will of the residents in favour of such exists, despite the explicit word “may” in the text of the law, and even though in my opinion such an obligation was not provided for. This position could only be reached on the basis of an understanding of the content of the right to local self-government that I believe to not be correct from a constitutional law perspective. In my opinion, it is not possible to say that the referendum is consultative while at the same time finding that the National Assembly is required to establish a municipality by law in the event of a “positive” result of the referendum.
 
11. It is interesting that the majority of legal theorists insisted on the clear position that a referendum is of a consultative nature before and after the mentioned Decision as well as in the light of the numerous statutory amendments of the LSA and the special law on the procedure for the establishment of municipalities. In 1996, Prof. Kaučič spoke of a relative consultative referendum, even though he stated that the third paragraph of Article 139 of the Constitution “on the one hand demands the application of a referendum, while on the other hand it presupposes its consultative, i.e. non-binding power.”[13] While in 1998, Prof. Grad stated the following: “A municipality thus cannot be established without carrying out a referendum, therefore its use is mandatory (…). In its consequences, however, such a referendum is not binding, as it does not require the National Assembly to observe the decision adopted in the referendum. Such entails that the referendum is not legally binding on the National Assembly, which, however, does not entail that it is not politically bound by such a decision, as it is an expression of the popular will in a particular territory.”[14] And he added with complete clarity: “If the residents in the corresponding territories where referenda were carried out decided in favour of establishing a municipality, the National Assembly may establish it by law, but it is not obliged to do so (emphasis added by J. S.).” In the same manner, in 2002, Dr Vlaj perfectly clearly explained the following in the Commentary on the Constitution: “The referendum is of a consultative nature and does not require the [National Assembly] to establish a municipality only in accordance with the referendum result. The Constitution prescribed a consultative referendum and left the final determination of the territory of a municipality to the National Assembly (emphasis added by J. S.).”[15]
 
12. How then should, in my opinion, the third paragraph of Article 139 of the Constitution be understood? As a constitutional court judge, I certainly cannot agree that the referendum in this provision is an “error in the Constitution”, as Prof. Šmidovnik wrote,[16] since I have sworn to uphold the Constitution and adjudicate in accordance therewith. The constitutional law content of the relevant provision must be determined and the meaning of its integral parts and of the provision as a whole must be established. The referendum, which the National Assembly is required to call, is without a doubt intended to enable the residents to state their position regarding proposed changes in the territory of a municipality in a democratic manner, as the Constitutional Court held in Decision No. U-I-285/98. As such, it has a consultative nature that cannot legally bind the National Assembly, but it may, as is also argued by Prof. Grad, have political effects. However, the latter are not and cannot be the subject of a review of constitutionality. If the referendum result had binding legal effect, the part of the provision of the third paragraph of Article 139 of the Constitution that assigns the National Assembly the competence to establish a municipality by law would be completely nullified. This law is not a law governing a concrete case, even though such might seem to follow from it at first glance given its content that defines the boundaries of a municipality and, as Dr Šmidovnik states, accords to an individual municipality the characteristic of being part of the legal system. Such by its nature results in essential general effects. On its basis, the municipality will be able to regulate – with the power of local public authority and in a general manner – all issues in the performance of its competences, and not only its residents, but everyone falling within the scope of its authority will have to act in accordance with its regulations. On the basis of such characteristic, it will derive its original power directly from its constitutional position. Such power is not accorded by “laws governing a concrete case”. As thereby the legislature must not only keep in mind local interests, but also general interests, the legitimacy of which it was granted in a democratic manner, i.e. through elections, due to which it itself is the legitimate representative of all citizens who through it exercise their right to manage the public affairs determined by Article 44 of the Constitution, it is not [the legislature's] right, but its competence and duty to respect local interests to such an extent as is allowed by the general interest. In adopting laws, it is, in my opinion, bound by the Constitution in an equal manner regardless of whether it regulates other issues by means of statutory content or by law accords to a municipality “the characteristic of being a part of the legal system”.
 
13. On the basis of all of the above, I can draw the conclusion that the right of the residents of a particular territory to have their own municipality does not derive from the constitutional definition of local self-government and that the obligation of the National Assembly to adopt a law on the establishment of a municipality if in a procedure for the establishment of a municipality the residents decide in favour of its establishment in a referendum does not derive from the Constitution. A different interpretation of the third paragraph of Article 139 of the Constitution would nullify the position of the democratically elected representative body, which is bound by the Constitution when making decisions in the legislative procedure. The deputies are representatives of all the people and are not bound by any instructions, as is determined by the first paragraph of Article 82 of the Constitution. They are, however, bound by the Constitution itself and obligated to respect it until they amend it by the prescribed procedure, as such is an elementary part of the rule of law. The Constitution, or in the case at issue the third paragraph of Article 139, however, does not require that they give priority to partial local interest in relation to general state interests, unless they themselves deem that different measures are required.
                                                                                                          
14. In past decisions, in light of the passionately debated issue of establishing a network of municipalities (which should have allegedly been concluded in 1998, even though it was evident from numerous further proposals that the process was only going to continue), the Constitutional Court stopped the “ avalanche” of newly established municipalities by Decision No. U-I-103/02, dated 18 April 2002 (Official Gazette RS, No. 39/02, and OdlUS XI, 64), but from the viewpoint of the issues under consideration here, that Decision is not of essential importance, even though the Constitutional Court recognised the position of petitioner to individual local communities precisely in relation to Decision No. U-I-322/98; exactly the latter went the farthest regarding the positions that I do not agree with. What appears to be more important to me is that, in my opinion, the presented constitutional law reasons exist, i.e. the reasons on the basis of which the Constitutional Court should have changed its position on the constitutional law content of local self-government and on the constitutional law content of the third paragraph of Article 139. Unfortunately, such is also not going to be effected by the present Decision of the Constitutional Court. On the contrary, this Decision only additionally affirms the hitherto positions, with which I cannot agree.
 
 
II
 
15. In accordance with the principle of the separation of powers determined by the second paragraph of Article 3 of the Constitution, the Constitutional Court only restricts the National Assembly in the exercise of its legislative function from the viewpoint of constitutionality. In this sense, we speak of constitutional democracy, as in the event that unconstitutionalities are established, the will expressed in a law, even though it was adopted in a procedure defined in advance and by a democratically established representative body, must give way to a higher value – the Constitution, with the Constitutional Court being the guardian thereof. Thereby the Constitutional Court must not review the political correctness of the legislature's acts and, in accordance with the principle of self-restraint, it must not encroach upon its margin of appreciation in the regulation of relationships in society. However, it may review the constitutionality of the procedure in which a law was adopted, but only in the form of a so-called a posteriori constitutional review.
 
16. In the case before us, the petitioners allege that the EMMBA is unconstitutional, as it does not contain provisions regarding the Municipalities of Ankaran and Mirna, and the unconstitutionality is alleged to originate from the fact that in the procedure for the adoption of an amendment of this law, which has not been adopted, there allegedly occurred violations that resulted in an unconstitutionality. The Constitutional Court can assess a procedure for the adoption of a law only from the viewpoint of constitutionality on the basis of the third paragraph of Article 21 of the CCA, which entails that the Constitutional Court must have before it a regulation that it is competent to review and an assessment of the constitutionality of the procedure in which it was adopted may be a part of this review. With regard to such, in hitherto decisions the Constitutional Court as clearly as possible highlighted that in the case of a law the subject of the review can only be the constitutionality of the procedure, and not a potential violation of the rules of procedure or a law. Potential violations of laws could reach the constitutional level if we were dealing with an instance where the procedure for [adopting] a law was regulated by a special law and there could have been a violation of Article 2 of the Constitution if the legislature breached the procedural rules it had determined itself. In my opinion, however, we are not dealing with such a case. The legislative procedure regarding which the petitioners allege certain violations had been concluded (to be precise, such is not yet clear in the case of Mirna – the procedure allegedly “came to a standstill”, as the Decision states) and did not result in a valid law that could be the subject of a constitutional review. As this is the case, we cannot review the procedure for the adoption of a non-existent law. Such an independent competence namely does not derive from the third paragraph of Article 21 of the CCA, which is logical, as otherwise the competence to carry out an a priori review of the constitutionality of a law would have been established without a constitutional basis. Also a review of the National Assembly's actions that could apply the same working method as, e.g., a constitutional complaint, but which could have decisively more far-reaching consequences – an order requiring the National Assembly to adopt a law – cannot be construed in such a manner. The Constitutional Court, however, did exactly this, to be precise, it ordered [the National Assembly] to adopt a law with precisely defined content.
 
17. As a result, in my opinion the petitioners' statements may only be reviewed from the aspect of the [reasons] for which they can challenge the currently valid EMMBA. Such could only be unconstitutional if the petitioners demonstrated that it is unconstitutional, because it does not define Ankaran and Mirna as independent municipalities. They could only substantiate such by demonstrating that from the Constitution (from Articles 138 and 139 of the Constitution) there derives the obligation to establish these two municipalities. As in my opinion, in accordance with the reasons presented above, such does not derive from the Constitution, it is not possible to address such allegations to the currently valid EMMBA.
 
18. It is true that the currently valid EMMBA contains an unconstitutionality in relation to Decision of the Constitutional Court No. U-I-301/98, dated 17 September 1998 (Official Gazette RS, No. 67/98, and OdlUS VII, 157) – the Municipality of Koper is unconstitutional, as according to the position the Constitutional Court took in the cited Decision its territory considerably exceeds the territory of the city and its direct surroundings, as it also includes the deep hinterland with settlements that do not belong to the suburban area. With regard to such, the Constitutional Court held that while the second paragraph of Article 139 of the Constitution provides the legislature with a relatively broad margin of appreciation, it does not allow for such evident deviations as are present in the case of the Urban Municipality of Koper. The Decision in the case at issue does not state a position regarding the presented arguments in relation to the cited Decision. Even though in Order No. U-I-245/06, dated 29 May 2008, the Constitutional Court again notified the legislature of the violation of Article 2 and the second sentence of the second paragraph of Article 3 of the Constitution, as the legislature had not yet remedied this unconstitutionality, I believe that that Decision has no effect on the Decision in the case at issue, as the petitioners do not have legal interest to again establish the same unconstitutionality. Namely, no obligation to establish precisely the Municipality of Ankaran derives from Decision No. U-I-301/98.[17] Therefore, regardless of what position one takes with regard to Decision No. U-I-301/98, even if the Constitutional Court were to establish the same unconstitutionality once again, such would still not lead to the result that the petitioners are seeking.[18] With regard to the Municipality of Mirna, no such elements even exist.
 
19. The Constitutional Court thus, in my opinion, does not have at its disposal appropriate constitutional law arguments and tools on the basis of which it could agree with the petitioners, establish the unconstitutionality of the EMMBA because it does not provide for the establishment of the Municipalities of Ankaran and Mirna, and order the National Assembly to adopt a law with precisely such content. The National Assembly may establish the Municipalities of Ankaran and Mirna. Such falls within the margin of its appreciation and its responsibility for the quality of local self-government, but it may not be ordered to do so by the Constitutional Court. Therefore, I voted against the first two points of the operative provisions of the Decision.
 
 
III
 
20. As the Constitutional Court issued an order and suspended elections in the Municipalities of Koper and Mirna, it could by no means avoid future decision-making regarding this question. Therefore, I may even have been able to agree with the mere abrogation of the act calling the elections in these two municipalities, as nothing else can be done at the moment. However, I also voted against the third point of the operative provisions, because I disagree with the other parts of the Decision. The fourth point is the continuation of the first and second points, with which I do not agree. In the fifth point, however, the Constitutional Court intervened with the principle of periodic elections. Already in Decision No. U-I-106/95, dated 25 January 1996[19], by which the Constitutional Court decided on the constitutionality of the so-called national lists, it defined certain fundamental principles of elections. It outlined that in the field of elections, the principles of free, universal, and equal suffrage as well as of direct and secret elections derive from the principle of democracy in relation to indirect (representative) democracy; if the election system corresponds to the listed principles and if the periodic nature of elections and the equal right of all political parties in the state to compete are guaranteed by law, the elections are democratic.[20] “Alongside human rights and the rule of law, democracy is one of the three pillars of the European constitutional heritage (…). Democracy is inconceivable without elections held in accordance with certain principles that lend them their democratic status. These principles represent a specific aspect of the European constitutional heritage that can legitimately be termed the “European electoral heritage ”. This heritage comprises two aspects, the first, the hard core, being the constitutional principles of electoral law such as universal, equal, free, secret and direct suffrage, and the second the principle that truly democratic elections can only be held if certain basic conditions of a democratic state based on the rule of law, such as fundamental rights, stability of electoral law and effective procedural guarantees, are met.” In this manner and six years after the Constitutional Court defined the fundamental electoral principles in the same manner the Venice Commission welcomed by an Explanatory Report the adoption of the new Code of Good Practice in Electoral Matters (adopted 5–6 July 2002), which already in the introduction supplements the five fundamental principles with the requirement of periodic elections. The introduction to point I, entitled Principles of Europe’s electoral heritage, namely reads as follows: “The five principles underlying Europe's electoral heritage are universal, equal, free, secret and direct suffrage. Furthermore, elections must be held at regular intervals (emphasis added by J. S.).” Why this is the case was amply explained by Prof. Jambrek when he stated that “The competences and functions of state authorities must be legitimated in such a manner that they originate in the people and that they are an expression of the will of the people reached in a definable manner. There must namely exist an uninterrupted chain of democratic legitimacy and appropriate responsibility running from the people towards the state authority and from the latter back to its origin.”[21] And precisely the latter is ensured by elections held at regular intervals, also at the level of local self-government. Therefore, the principle of periodic elections is not only a principle, it is an integral part of the right to vote as such, which completely clearly also follows from Article 3 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms[22], which determines as follows: “The High Contracting Parties undertake to hold free elections at reasonable intervals (emphasis added by J. S.) by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” That the principle of periodic elections is an integral part of the right to vote is also stated in the Decision. Such entails a human right, which the Constitutional Court considered in Decision No. U-I-163/99, dated 23 September 1999 (Official Gazette RS, No. 80/99, and OdlUS VIII, 209), when it held that the periodicity of elections must be given precedence over the otherwise established unconstitutionality of the statutory regulation with regard to the establishment of the municipality under Decision No. U-I-301/98.
 
21. Also in the case at issue, the Constitutional Court interfered with a constitutional right of the voters in the territories of the Municipality of Koper and the Municipality of Trebnje. In my opinion, the Constitutional Court has to be extremely careful with regard to such interferences with this political human right. Especially following Decision No. U-I-163/99, it must carry out a constitutional law weighing of the conflicting values, whereby, in light of the above, for me the periodicity of elections ranks high on the ladder of constitutional values, as it concerns the very foundations of the democratic order. In the light of such, I voted against point 5 of the operative provisions of the Decision.
 
 
Mag. Jadranka Sovdat
 
 
Endnotes:
[1] Regarding the characteristics of local self-government, which along with a territorial element, also contains functional, organisational, material-financial, legal, and subjective elements, see F. Grad, Lokalna demokracija [Local Democracy], Uradni list Republike Slovenije, Ljubljana 1998, p. 14. On the same subject, see also F. Grad and I. Kaučič, Ustavna ureditev Slovenije [The Constitutional System of Slovenia], Gospodarski vestnik, Ljubljana 1999, pp. 322–324, and J. Šmidovnik, Lokalna samouprava [Local Self-Government], Cankarjeva založba, Ljubljana 1995, pp. 27–29.
[2] It would have been more appropriate if when translating the ECLSG the English word “equal” had been translated as the Slovene word “enako” [translator's note: equal] rather than “enakopravno” [translator's note: equal in terms of rights].
[3] J. Šmidovnik, op. cit., p. 27.
[4] Ibid.
[5] At the 18th Session of the Commission for Constitutional Questions on 12 December 1990, an unknown speaker thus inter alia stated the following: “The first question is if, for example, some village may request that the National Assembly adopt such a law and transform it into a municipality, this great question that will be debated at length by law (…).” in M. Cerar, G. Perenič (eds.), Nastajanje slovenske Ustave, izbor gradiv Komisije za ustavna vprašanja 1990–1991 [The Process of Creating the Slovene Constitution, a Selection of Documents of the Commission for Constitutional Questions 1990–1991], Book No. III, Ljubljana 2001, p. 1065.
[6] See the Report of the Committee on Local Self-Government and Regional Development on the Draft of the Act Amending the Local Self-Government Act (LSA-R) – the second reading on 7 June 2010.
[7] Or, as it added in other words: “The municipality, then, is a community of people living within the area of one or more mutually interconnected settlements. Its particular characteristic is territorial integration, which is the basis for the development of a network of interpersonal and neighbourly relations and of an awareness of belonging to the municipality as a basic territorial entity.” The Constitutional Court repeated the same definition also in Decision No. U-I-144/94, dated 15 July 1994 (Official Gazette RS, No. 45/94, and OdlUS III, 95).
[8] It appears logical that also in Decision No. U-I-144/94 the Constitutional Court speaks of the fact that precisely the division of competences between the state and a municipality is the first characteristic of local self-government and it adds that the territorial connection of the residents in a certain area is its second equally important characteristic due to the awareness of the residents that they form a community in which they decide on matters of common importance.
[9] This is how I understand Prof. Šmidovnik, op. cit., pp. 27–29, and other above cited authors. 
[10] As it is not a human right, it is unusual that by Decision No. U-I-322/98, dated 15 March 2001 (Official Gazette RS, No. 28/01, and OdlUS X, 44), the Constitutional Court established the inconsistency of the then valid act on the procedure for establishing municipalities with the fourth paragraph of Article 15 of the Constitution, as the act allegedly did not guarantee judicial protection against decisions adopted by the National Assembly in the preliminary procedure in which the conditions for the establishment of municipalities are determined, even though the decision of the National Assembly, as the Constitutional Court held, allegedly has a direct influence on the exercise of a constitutional right. The fourth paragraph of Article 15 explicitly guarantees judicial protection of human rights and fundamental freedoms (and is, from this perspective, a special provision in relation to the first paragraph of Article 23 of the Constitution) and the right to have the consequences of their violations remedied; therefore it can have no connection with local self-government. Already at this point, the dissenting opinion of Judge Ribičič with regard to this Decision should be explicitly mentioned.
[11] Even if we do not accept the position Prof. Šmidovnik presented at the public hearing entailing that no particular concept of a municipality follows from the Constitution, despite numerous Constitutional Court decisions, the notion of a “constitutional and statutory concept of a municipality” remains “evasive” to say the least. Such is only reinforced by the legislature's wide margin of appreciation when filling it [with meaning]. The definition according to which a local community is a community of persons living in the territory of one or several mutually connected settlements, a particular characteristic of which is a territorial connection, on the basis of which a network of interpersonal and neighbourly relations as well as the awareness of belonging to a municipality as the fundamental territorial community are formed, and which also presupposes that the future municipality will be capable, with regard to the number of its residents and other circumstances, of independently handling local affairs, namely allows for one or another solution in the case at issue.
[12] Also in Decision No. U-I-285/98, dated 17 September 1998 (Official Gazette RS, No. 67/98, and OdlUS VII, 160), the Constitutional Court stated, regarding the legal nature of such referendum, that through the referendum the Constitution guarantees the residents of areas where territorial changes to the network of municipalities have been proposed the right “to be heard” or to take a position regarding the proposed changes in a democratic manner.
[13] I. Kaučič, Pravna narava referenduma za ustanovitev občine [The Legal Nature of a Referendum with regard to the Establishment of a Municipality], in: Zbornik referatov III. srečanja upravnih delavcev Slovenije, Univerza v Ljubljani, Visoka upravna šola, Ljubljana 1996, pp. 152–153.
[14] F. Grad, op. cit., pp. 108–109.
[15] S. Vlaj in: L. Šturm (ed.), Komentar Ustave Republike Slovenije [The Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2002, p. 956.
[16] As it appears to be democratic, but in fact conceals a practice of severe disregard for the will the residents expressed in a referendum, J. Šmidovnik, op. cit., pp. 177–178.
[17] As is evident from the dissenting opinion of Judge Krivic with regard to the cited Decision, the petitioner allegedly contended that in addition to the proposed establishment of three municipalities (i.e. the Municipalities of Ankaran-Škofije, Dekani, and Šmarje-Marezige), the proposal should have included five even smaller municipalities, while leaving Ankaran in the Municipality of Koper.
[18] Prof. Čebulj presented the reasons why the establishment of the Municipality of Ankaran would not entail remedying the unconstitutionality established by Decision No. U-I-301/98 in an opinion on the constitutional law framework of the establishment of the Municipality of Ankaran, which was provided by the Urban Municipality of Koper.
[19] Official Gazette RS, No. 14/96, and OdlUS V, 12.
[20] Para. 7 of the reasoning of the cited Decision.
[21] P. Jambrek in: L. Šturm, op. cit., p. 48. 
[22] Official Gazette RS, No. 33/94, MP, No. 7/94.
 
 
Concurring Opinion of Judge Dr Ernest Petrič,
Joined by Judge Jan Zobec
 
 
I voted for the operative provisions of this Decision as a whole, but I would like to stress that by no means do I support the further breaking up of the territory of Slovenia into municipalities.
 
The Decision (in para. 20 of the reasoning) summarises the position of the Constitutional Court from the beginning of the process of establishing local self-government in Slovenia as that it is the task of a state governed by the rule of law to set up a regulation according to which this process is to be carried out in a legally regulated and foreseeable manner (Decision No. U-I-13/94, dated 21 January 1994). The establishment of this legal framework is the National Assembly's responsibility and, as far as the question of the appropriateness of the criteria and rules of the procedure are concerned, it falls within its margin of appreciation. The Constitutional Court may not interfere with this margin of appreciation. It may, however, review constitutional law questions with regard to the observance of the prescribed criteria and the implementation of the procedure for establishing municipalities. I would like to emphasise that it is the National Assembly's political and professional responsibility to lay down reasonable and developmentally appropriate conditions for the formation and functioning of local self-government and that it is its responsibility under constitutional law to observe and implement these conditions to the letter. Even though such concerns the legislature, its responsibility to observe existing norms cannot be any less than that of everyone else.
 
From hitherto Constitutional Court positions it follows that all questions in relation to the fulfilment of the conditions for establishing a municipality have to be resolved in the procedure leading up to a referendum, including by means of judicial protection, which is also summarised in the reasoning of this Decision (para. 18 of the reasoning, Decision No. U-I-322/98, dated 15 March 2001). It is precisely the quality of the implementation of this part of the procedure that is essential for controlling the process of establishing local self-government and its further organisation. Regardless of the announcement of a policy change and regardless of the already amended procedure for future potential changes to the network of municipalities, the appropriate preparation of the “new municipality” project is a substantial precondition for the quality of the development and functioning of local self-government.
 
In order to create municipalities that are capable of performing their tasks effectively and for the benefit of the residents of their territory, a thorough and comprehensive assessment procedure has to be carried out, in which the National Assembly must adopt its finding of either the fulfilment or non-fulfilment of the criteria for the establishment of a municipality on the basis of expert information and analyses of all relevant issues regarding the establishment of a municipality. An examination of the parliamentary materials does not demonstrate such. Regardless of the applicant's identity, the submitted proposals for new municipalities should be strictly and comprehensively reviewed already in the first stage of the procedure in order to establish if they fulfil the predetermined statutory criteria for the existence and functioning of a municipality as a community of residents that enables the realisation of common needs at the local level. Already at this stage, it is also necessary to examine the wider aspects, i.e. the effects in the region, as well as at the national level. Regarding such, I particularly underline the public finance perspective, since the National Assembly should be particularly diligent in ensuring that the existence and functioning of municipalities is to be based on the constitutional principle of their self-financing in accordance with Article 142 of the Constitution and Article 9 of the European Charter of Local Self-Government (Official Gazette RS, No. 57/96, MP, No. 15/96 – ECLSG). Only when the National Assembly finds, on the basis of conclusions supported by data, that the proposed municipality fulfils the statutorily determined criteria so that it will function effectively and perform its constitutionally defined tasks may it proceed to the calling of a referendum, at which the will of the residents in the area is to be established. The National Assembly cannot pass the responsibility for the establishment of a new municipality and its future functioning on to the residents of the area at issue. It has to perform its part of the constitutional and statutory tasks of the “new municipality” project responsibly.
 
However, once the National Assembly is already in the stage of the procedure for establishing or setting up a municipality where a referendum has been called, such entails that it has already applied and exhausted its substantive jurisdiction to establish a municipality. The return of the National Assembly to a previous stage of the procedure is no longer possible, as it has already taken decisions by which it itself is also bound in the remaining part of the procedure (Venire contra factum proprium nemini licet). Therefore, from here on only the question of the consideration of the will of the residents of a particular territory remains. Only such can still influence the implementation of the legislative competence of the National Assembly. The will that the residents express in the referendum is thus a signpost for the implementation of the final stage of the National Assembly's constitutional competence in the procedure for establishing a new municipality and determining its territory by law. I am convinced that the National Assembly can only prevent the excessive breaking up of the territory of Slovenia into municipalities by respecting the statutorily determined criteria and conditions as well as strict assessment of the information necessary for the establishment of a municipality.
 
The voting on the operative provisions of this Decision of the Constitutional Court, which will eventually bring about two new municipalities, might at first glance contain an inconsistency. However, the Constitutional Court cannot substitute for the National Assembly as regards its most important competence regarding the establishment of a municipality, i.e. in the assessment of the fulfilment of the criteria and conditions for the establishment of a municipality. In the case at issue, the conduct of the National Assembly did not correspond to the constitutional law criteria, as is exhaustively and reasonably substantiated in the reasoning of the Decision. Therefore, in spite of my opposition to the further breaking up of municipalities into smaller pieces, I cannot find a constitutional law basis for voting against the operative provisions of this Decision.
 
Dr Ernest Petrič
 
Jan Zobec
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Ankaran Local Community, the Mirna Local Community, and others
Date of application:
04.06.2010
Date of decision:
26.11.2010
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is inconsistent with the Constitution/statute annulment or annulment ab initio
Document:
AN03470