Republika Slovenija Ustavno Sodišče
Total Page:16
File Type:pdf, Size:1020Kb
REPUBLIKA SLOVENIJA USTAVNO SODIŠČE U-I-304/94-9 9/11-1995 DECISION At a session held on 9/11-1995, in a proceeding for assessing constitutionality and legality which was commenced on the initiative of the local communities Grad, Destrnik, Podnanos, Lozice and Martjanci and citizens of the local community of Videm ob Ščavnici, the Constitutional Court reached the following decision: 1. Articles 2 and 3 of the Law on founding municipalities and on deciding their territories (Official Gazette RS, no. 60/94, 69/94 and 73/94 - odl.US) are not in compliance with the Constitution, for reasons cited in the reasoning of this Decision. 2. Article 9 and the fifth paragraph of article 16 of the Local Government Act (Official Gazette RS, no. 72/93, 57/94 and 14/95) are not in compliance with the Constitution insofar as they do not determine that the law defines the name and seat of the municipality according to a previously held referendum by which the will of the inhabitants is established. 3. The Local Government Act is not in compliance with the Constitution insofar as it does not define the procedure and criteria for deciding or changing the name and seat of a municipality. 4. The National Assembly must remove the established conflicts under points I, 2 and 3 of this Disposition, not later than six months prior to holding the next local elections. Reasoning A.-I 1. The local communities (hereinafter: KS) of Grad, Destrnik, Podnanos, Lozice and Martjanci and citizens of KS Videm ob Ščavnici, in their initiative for assessing the constitutionality of article 2 of the Law on founding municipalities and on deciding their territories (hereinafter: Law on founding municipalities) at the same time argued the unconstitutionality of the provisions concerning the territory of municipalities and the unconstitutionality of the provisions on the name and seat of municipalities. The Constitutional Court resolved that the parts of the initiative which refer to an assessment of the constitutionality of the provisions on the name and seat of municipalities shall be separated and brought together in a special case no. U-I-304/94. a) KS Grad states in its initiative of 6/10-1994 that citizens from the territory on which the municipality of Grad, with seat in Grad, should have been founded on the proposal of the Government Service for reform of local self-government, decided by a large majority in favour of an independent municipality with the name of Grad and seat in Grad. The National Assembly did not respect the expressed will of the inhabitants, but in article 2 of the impugned Law, under reference no. 53, it not only decided in favour of a different territory of the municipality but also changed its name and seat into the municipality of Kuzma, with seat in Kuzma. KS Grad has a larger population, since it has 3083 inhabitants, and the settlement of Grad itself has 803 inhabitants, while KS Kuzma has 1951 inhabitants, and Kuzma itself 445. The settlement of Grad is among the oldest settlements in Prekmurje; it is mentioned as early as the 12th century as an administrative and military centre, and as a market town in 1478. Until 1958, it was also the seat of the last wider municipality of Grad, while there was only a district office in Kuzma. The settlement of Grad is becoming a strong centre in this part of Gorička, while Kuzma is a minor border village, and people who come for business to Grad must now travel a further 10 kilometres to Kuzma to perform business with the municipality. 2 b) Citizens KS Videm ob Ščavnici mention in their initiative that the decision to change the name of Videm ob Ščavnici into Sveti Jurij was in conflict with the expressed will of citizens in this local community, who decided by referendum that they were not in favour of founding a new municipality with the name Sveti Jurij. c) KS Destrnik states that the seat of the municipality, which the National Assembly determined in article 2 of the impugned Law under ref. no. 17 as Trnovska vas, was forced on the inhabitants of Destrnik. It believes that the National Assembly is not authorised to decide the seat of a municipality. In compliance with article 19 of the Local Government Act, the regulation of this question should have been left to the Statute of the municipality. It stresses that it is very much affected by the decision on the seat in Trnovska vas, since the exercise of rights will be delayed for the majority of the inhabitants of the new municipality , which is in conflict with the principle of associating in municipalities because of common needs and interests. KS Destrnik, according to the most recent data, has a population of 2700, and the total number of inhabitants of KS Trnovska vas and KS Vitomarci is only 2600. The initiator believes that the Law on founding municipalities directly violates the provisions of the third paragraph of article 139 of the Constitution and article 14 of the Local Government Act. č) KS Podnanos and KS Lozice state in their submission that an independent municipality of Podnanos was voted for in the referendum, but the National Assembly did not respect this and in article 2 of the impugned Law, under ref. no. 125, elected to include the municipality of Podnanos in the municipality of Vipava, and determined the name of the municipality, namely Vipava. A great injustice was done by the decision of the National Assembly, who decided against the will of the citizens. This injustice can only be repaired by adopting Vipava - Podnanos as the name of the new municipality. d) KS Martjanci believes that the founding of a new municipality of Moravske Toplice with seat in Moravske Toplice, violated the basic constitutional condition for creating a municipality, which is the linking of people with common needs and interests in a settlement or in a number of settlements. The settlement of Moravske Toplice has no historical tradition in administrative- political activity. It is so out-of-the-way, that citizens from the majority of settlements have no direct bus links with the settlement, but must take another bus in the settlement of Martjanci. In contrast, the settlement of Martjanci is so situated that the main regional road passes through it, connecting the settlements of the new municipality with Murska Sobota. A municipality of Martjanci, with seat in Martjanci, operated prior to the second world war and throughout the war until 1960. Even now there is a district office in the settlement, which covers the territories of KS Martjanci, Moravci and Tešanovci. The government proposal for the name of the new municipality was Martjanci - Moravci, with seat in Martjanci, but this was changed in the legislative procedure on the basis of an amendment to change the name and seat of the municipality. A.-II 2. The Secretariat for legislation and legal affairs of the National Assembly states in its answer that the initiatives refer to article 2 of the Law on founding municipalities, which also determines the name and seat of individual municipalities and in relation to which the Constitutional Court has already found it not to comply with the Constitution, by decision no. U- I-183/94 of 9/11-1994 (OdlUS 122/III). In compliance with the decision of the Constitutional Court, article 2 of the impugned Law on founding municipalities will undoubtedly be changed, perhaps also in those parts of which the initiators impugn the constitutionality. The National Assembly would accept an initiative to change the name or seat of a municipality, insofar is this was the wish of the large majority of the inhabitants. In this it draws attention to the fact that precisely the name and seat of a municipality represents a question about which the wishes of the inhabitants frequently differ and because of this, in individual cases, the decision is predominantly left to the assessment of delegates (to the National Assembly) Such a decision is claimed to have been in compliance with article 9 of the Local Government Act, which determines that the name and seat of a municipality shall be determined by Law and not the citizens directly or organs of the municipality. Since the National Assembly is only relatively bound to the will of citizens, it believes that the initiatives are not well-founded. B.-I. 3 3. The Constitutional Court considered all the submissions of the local communities and their representatives or individual citizens to be initiatives, and accepted the legal interest of the applicants in lodging an initiative. Only representative organs of the new local communities may demand an assessment of constitutionality and legality on the basis of indent 7 of the first paragraph of article 23 of the Constitutional Court Act (Official Gazette RS, no. 15/94 - hereinafter ZUstS). 4. The Constitutional Court, when it had established that conditions under the fourth paragraph of article 26 ZUstS were met, on the basis of the accepted initiatives immediately continued in deciding on the matter itself. B.-II. 5. In their initiatives, the local communities state that the legislator, on the basis of amendments from individual delegates who represented specific local interests, changed the name and seat of a municipality (KS Grad and Martjanci), that in deciding on the name they did not respect the will of the inhabitants expressed in a referendum, or that the inhabitants did not have the opportunity to comment on the change of name (KS Videm ob Ščavnici and KS Podnanos and Lozice) and that the Law may not define the seat of a municipality, because this decision should be left to the statute of the municipality (KS Destrnik).