U-I-81/93 12.5.1994

D E C I S I O N

At the meeting held on 12 May 1994 and concerned with the procedure for assessment of constitutionality and legality initiated by the Institute for Preservation of the Natural and Cultural Heritage of Gorica, Nova Gorica, the Constitutional Court

m a d e t h e f o l l o w i n g d e c i s i o n:

The Ordinance on modification of the Ordinance on the proclamation of cultural and historical monuments and natural sites in the area of Tolmin Municipality (Official Gazette of the Municipalities of Ajdovščina, Nova Gorica and Tolmin, no. 2/93) shall be abrogated.

R E A S O N S :

A.

The initiator claims that the disputed Ordinance, with which the Municipal Assembly cancelled the provision proclaiming the river Soča a natural site contained in the Ordinance on the proclamation of cultural and historical monuments and natural sites, is in conflict with Article 18 of the Natural and Cultural Heritage Preservation Act (Official Gazette of the Socialist Republic of Slovenia, nos. 1/81, 42/86, 8/90 and 26/92). The initiator claims that such a decision could only have been made by the Municipal Assembly subject to obtaining prior positive opinion of the initiator. In reply to the claims made in the initiative, the Municipal Assembly states that the disputed Ordinance was passed because the river Soča was already protected on the basis of provisions of the Act specifying the protected area of the river Soča and its tributaries (Official Gazette of the Socialist Republic of Slovenia, nos. 7/76, 8/76 and 29/86), and because this entire area had already been declared a national park and, consequently, a natural site as well by the Triglav National Park Act (Official Gazette of the Socialist Republic of Slovenia, nos. 17/81, 18/81, 42/86 and 8/90). Since the matter is supposed to fall within the competence of the State, the disputed Ordinance passed by the Municipal Assembly is claimed only to have brought the illegal provisions contained in its Ordinance on the proclamation of cultural and historical monuments and natural sites of 1990 in conformity with statute.

B.

With its Resolution no. U-I-81/93-16 of 20 January 1994 the Constitutional Court accepted the initiative. In its preliminary procedure the Constitutional Court examined written materials and opinions of competent authorities and organizations. It established that the disputed Ordinance of the Municipal Assembly of Tolmin had cancelled Article 46, clause 8, of the Ordinance on the proclamation of cultural and historical monuments and natural sites in the area of Tolmin Municipality (Official Gazette of the Municipalities of Ajdovščina, Nova Gorica and Tolmin, no. 5/90), which had also proclaimed the river Soča a natural site and had protected it accordingly. The cancelling of this provision had resulted in the cancellation of the river Soča protection regime provided for in Article 18 of the same Ordinance, which had prohibited inter alia the construction of hydroelectric power plants, changes in water regime, river training works, riverbank building construction etc.

The said protection regime had been prescribed by the Municipal Assembly on the basis of Articles 18 and 19 the Natural and Cultural Heritage Preservation Act of 1981 by taking into consideration expert opinions prepared in the capacity of legally authorized proposer by the Institute for Preservation of the Natural and Cultural Heritage of Gorica.

The Act specifying the protected area of the river Soča and its tributaries of 1976 has defined a wider protected area including the river bed, the areas under river water and riverbanks of the Soča river with its tributaries at the section extending from the source of the Soča river and their tributaries respectively to the confluence of the Soča and Idrijca rivers at Most pri Soči. The protection regime applying to the protected area, including the Soča river, as specified in Article 3 of this Act, is less 2 rigorous than the above mentioned regime based on municipal Ordinance for prohibiting construction activities and other actions or omissions only in the cases when these might lead to a change in the water regime or water quality, which means that the prohibition is not absolute, as prescribed in the municipal Ordinance for the Soča river.

An even lesser degree of protection of the Soča river is ensured by direct application of the Triglav National Park Act of 1981, whose protected area comprises the entire central part of the Julian Alps within the boundaries specified in detail in Articles 3 and 4 thereof. This Act defines the protection regime through the prohibitions prescribed in Article 12 and applying to the entire protected area of the Triglav National Park. Clause 13 of this Article, for example, prohibits construction or reconstruction of hydroelectric power structures and facilities and the taking of measures and actions affecting the water courses and the land under water by changing the quantity and quality of waters and their distribution in time and space, or by changing natural conditions of the areas under water and riverbank land, except when these may be required in ensuring drinking water supply, hydroelectric power supply for smaller areas within the National Park or its immediate vicinity, or within the scope of erosion control, land- and snowslide and flood protection measures.

Article 6 of this Act stipulates that a special act shall protect parts of immovable natural and cultural heritage of special cultural, historic or aesthetic value within the National Park area by granting them the status of natural site, cultural or historical monument. And special additional protection of the Soča river provided for by the said municipal Ordinance, which had ceased to be in force with the coming into force of the disputed Ordinance, had been in accordance with this provision of the Act.

In its letter to the Constitutional Court of 26 April 1993 the Ministry of Culture states, inter alia, that the Act on the Soča river of 1976 "does not protect the Soča river and its tributaries from the point of view of protection of natural and cultural heritage, which is evident from the protection regime prescribed therein, of which the Municipality is aware .." and continues: "It was precisely this protection regime of excessive rigour which has made the Municipality remove the Soča river from the Ordinance on proclamation, because the Act specifying the protected area of the river Soča and its tributaries had existed already at the time of adopting the initial Ordinance on proclamation, with this fact not in any way disturbing the Municipality at that time."

In its letter to the Constitutional Court of 12 July 1993 the Institute for Preservation of the Natural and Cultural Heritage of Gorica from Nova Gorica, inter alia, states: "The actual reason for changing the Ordinance .... was clearly directed at the removal of legal obstacles for obtaining consent for the construction of the small-capacity hydroelectric power plant Krajcarica II. In this way, a municipal legal regulation, which protected the Krajcarica tributary of the Soča river on municipal level, was cancelled. ... But the assertion of expert bodies of the Tolmin Municipality that the Act protects the Soča river as a natural site is not true at all. This is because the Act prevents constructions in the bed of the river and its tributaries, and partly also regulates the general principles of the protection of biotopes. This, however, can not be used as a basis for asserting that the Act is a regulation granting the Soča river the status of natural site."

The Constitutional Court established that with the coming into force of the disputed Ordinance the legally prescribed protection measures relating to the Soča river had ceased to be in force, or had been substantially reduced in scope, for which reason the disputed Ordinance was not in conformity with Article 73 of the Constitution, according to which each person shall be obliged, in accordance with statute to protect rare and precious natural areas, as well as cultural monuments, and according to which state and local governments shall be responsible for the preservation of the natural and cultural heritage. If the Municipal Assembly had changed its initial decision with a view to reducing the legal protection of these natural sites provided at that time, this decision could have been considered as still acceptable from the point of view of constitutional law, if the assessment of the interests deriving from constitutional law had shown that the degree and scope of protection ensured up till then had possibly interfered excessively with some other interests protected by the Constitution and which could have been taken into consideration without affecting the protection of natural heritage in an essential and disproportionate manner. But in the case under consideration the Municipal Assembly has not made any reference to such reasons for the disputed decision in the procedure before the Constitutional 3

Court; neither had these been mentioned by the proposer of the disputed Ordinance in the process of its adoption as the reason for its adoption.

On the contrary, in both instances the reasons given included the alleged subsequent realization by municipal authorities to the effect that their Assembly had not been competent for proclaiming the Soča river a natural site, because of the nature of the latter which was not only of municipal but of national importance. If this had been the real reason for the controversial change, this would have necessitated the removal from Article 8 of the initial Ordinance not only of the Soča river but also at least of some other from among the 62 natural sites mentioned there, and in particular of the Triglav mountain. The fact that this has not been done, together with other circumstances mentioned before, indicates that the real reason for the disputed change has been concealed.

At the same time, the disputed Ordinance is also in conflict with the principle of the state governed by the rule of law referred to in Article 2 of the Constitution. Its passing should be considered a legally unacceptable misuse of the right of the Municipality to pass and change the regulations falling within its competence.

C.

This Decision was reached on the basis of Article 21, paragraph 1, and Article 45, paragraph 2, of the Constitutional Court Act (Official Gazette of the Republic of Slovenia, no. 15/94) by the Constitutional Court at its meeting in the following composition: Dr. Anton Jerovšek, President, Dr. Peter Jambrek, Matevž Krivic, M.L., Janez Snoj, M.L., Dr. Janez Šinkovec and Dr. Lovro Šturm, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M. Zupančič, the judges. The Decision was reached with five votes in its favour and four votes against it. (The judges Dr. Anton Jerovšek, Janez Snoj, M.L., Dr. Lovro Šturn and Franc Testen voted in the negative).

P r e s i d e n t: dr. Anton Jerovšek