Republika Slovenija Ustavno Sodišče

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. 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). The cited initiatives raise an important question, whether the third paragraph of article 139 of the Constitution requires the holding of a referendum and ascertaining the will of the inhabitants not only in relation to the territory of a new municipality but also in relation to the name and seat of a new municipality.

6. In addition to the territory of a municipality, the name and seat are undoubtedly crucial constitutive elements of any municipality as a local community which is "bound by common needs and interests of the inhabitants" (first paragraph of article 139 of the Constitution), as well a municipality as a person in public law which may enter into legal business "with the right to mediate, obtain and dispose of all kinds of assets" (article 7 of the Local Government Act). The decision on territory, name and seat gives a municipality a legal identity and is an expression of its individuality. The inhabitants are bound in deciding the name, as well as the seat, often for historical reasons, which is also clear from the initiatives heard in this matter and are sensitive to changes which do not have weighty justification and are not based on previously defined criteria and conditions. On the other hand, the state also has an interest that the names and seats of municipalities are decided in compliance with specific criteria, such as: that they express geographic or historical significance, that the names are mutually distinguishable, and so on. In German constitutional practice, the state has the right to decide the name of newly founded municipalities - after obtaining their previous opinion - not only because of the historical development of the German communal system, but also because of the wider significance of the name of a local community and the interest of the state in clear and unmistakable signs (Decision of the German Constitutional Court, published in BVerfGE 50, 195). It is additionally necessary to stress that in foreign legislation, the name of a municipality is given greater importance, whereby the legislative arrangements regulate primarily the manner of deciding the name of local communities.

The Italian Constitution thus determines in article 133, that a region may found new municipalities with their own regulations and in the framework of their own territory, and decide the name, but only after having obtained the prior opinion of the inhabitants.

7. In its third paragraph of article 139, the Constitution determines: "A municipality may be founded by Law after the prior holding of a referendum whereby the wish of the inhabitants on the specified territory shall be determined. The Law shall also determine the territory of the municipality". The Constitution speaks only of the founding of a municipality by Law after the prior holding of a referendum on a specified territory, and as a mandatory component of the law on founding, determines only the territory of the municipality. Equally, the Local Government Act as the systemic law in the field of local government does not specify the content of the founding charter. In the first paragraph of article 14 it merely sensibly takes over the provisions of the third paragraph of article 139 of the Constitution, when it determines that a municipality shall be founded and its territory defined by Law after the prior holding of a referendum, whereby the will of the inhabitants shall be obtained. The legislator had two possibilities in interpreting the cited constitutional provision for regulating legislatively the decision of the name and seat of the municipality: Because the Constitution binds the 4 legislator in founding a municipality to determine by Law only the territory of the municipality, an arrangement whereby the final decision on the name and seat of the municipality be left to the municipality itself, such that the Local Government Act define criteria for deciding a name and seat, would have been constitutional. On the basis of a second interpretation of the cited constitutional provision, the legislator could on founding a municipality define not only the territory of the municipality but also other elements, thus also the name and seat, but the Constitution binds it to holding a prior referendum and establishing the will of the inhabitants on all elements of the founding act.

8. The legislator followed no constitutionally permissible interpretation of the third paragraph of article 139 of the Constitution in relation to the decision on the name and seat of municipalities. In the Local Government Act, the decision on the name and seat of municipalities is not left to municipalities to arrange independently themselves, but it is determined in article 9 that the name and seat of a municipality shall be defined by law. The same is determined also for the name of an urban municipality in the fifth paragraph of article 16, which determines that the National Assembly shall determine the territory and name of an urban municipality (but not the seat) by a law on founding urban municipalities. Such an arrangement for deciding the name and seat of a municipality, as well as the name of an urban municipality, is not in compliance with the third paragraph of article 139 of the Constitution. Because the legislator decided that the name and seat of municipalities will also be determined by Law, in compliance with the third paragraph of article 139 of the Constitution it should have determined that this can be done only after the prior holding of a referendum. So the Constitutional Court found that article 9 and the fifth paragraph of article 16 of the Local Government Act are not in compliance with the Constitution insofar as they do not determine that the law determine the name and seat of a municipality or the name of an urban municipality after the prior holding of a referendum, whereby the will of the inhabitants shall be determined.

9. By Decree on defining referendum territories for the founding of municipalities (Official Gazette RS, no. 22/94) the National Assembly defined 340 referendum territories for the founding of municipalities, such that it stated also the name of the referendum territory which in fact meant the name of the future new municipality. Article 12 of the Law on a referendum for the founding of municipalities (Official Gazette RS, no. 5/94) determined the content of the announcement and the question which would be decided in the referendum, and it read: "Are you in favour of a new municipality being founded on our referendum territory?" In the referendum, the inhabitants of settlements which were included in a specified referendum territory could only vote on the referendum territory, whereby, although it was defined by name, they did not have the opportunity to vote specifically on the name or seat of the future municipality.

Voters who, for example, agreed with the decision on the referendum territory but not with the proposed name, did not have the opportunity of registering their wishes in an appropriate manner, because only one question was set, which embraced both the territory and the name of the envisaged municipality. By resolution no. U-I-105/94 of 20/5-1994 (OdlUS 56/iii), the Constitutional Court has already decided that the referendum question contained the name of the then envisaged future municipality. In the case cited, the Constitutional Court judged only the question of whether the referendum question was clearly enough expressed, so that voters could clearly and without doubt ascertain on the basis of its content what kind of and which future municipality it was being asked to reply to by the referendum question, and it did not decide whether the decision on a name and seat of a municipality by law without the prior holding of a referendum is in compliance with the Constitution. In view of the above mentioned, the Constitutional Court finds that the wishes of the inhabitants in relation to the name of an individual municipality was not established by the referendum which was held prior to the founding of the new municipalities, although the name of the referendum territory was also included in the referendum question.

10. Since the Law on founding municipalities, whereby 147 new municipalities were founded on the entire territory of the state, also determines the name and seat of each of the new municipalities, without there having been a prior referendum whereby the wishes of the inhabitants in a specific territory be ascertained also in relation to the name and seat, the Constitutional Court found that the decision on the name and seat of municipalities by the Law on founding municipalities was not decided in compliance with the third paragraph of article 139 of the Constitution. So the Constitutional Court decided that articles 2 and 3 of the Law on founding municipalities, in the parts which define the 5 name and seat of municipalities is in conflict with the Constitution. Bearing in mind the decision of this court, no. U-I-183/94 of 9/11-1994 (OdlUS 122/III) by which it similarly decided that articles 2 and 3 of the Law on founding municipalities are not in compliance with the Constitution and that the National Assembly must remove the discordances not later than six months prior to the holding of the next local elections, it has determined the same time limit for removing the discordances in the case under discussion. The Constitutional Court believes that in order to remove the established discordance, it is not necessary to hold a referendum in relation to the name and seat of a municipality in all municipalities defined in articles 2 and 3 of the Law on founding municipalities, in which the neither the name or seat are disputed, but only in municipalities which are the subject of the hearing of this decision, that is in the municipality of Destrnik-Trnovska vas (point 17) in relation to the seat of the municipality, in the municipality of Kuzma (point 53) in relation to the name and seat of the municipality, in the municipality of Moravske Toplice (point 73) in relation to the name and seat of the municipality, in the municipality of Sveti Jurij (point 106) in relation to the name of the municipality and in the municipality of Vipava (point 125) in relation to the name of the municipality, as well as in those cases in which the name or seat are in dispute.

11. The competence of the state in determining the name and seats of municipalities is undoubtedly more important at the time of the establishment of the system of local government, when completely new municipalities are being founded, often through the uniting of settlements each of which has its own name and seat, and it is important to resolve conflicting interests. In such a situation, it was the legislator who, on the basis of a referendum held in 340 referendum territories, then proposed the founding of essentially fewer municipalities.

It was necessary therefore to join together individual referendum territories which did not meet the constitutional and legal conditions for the founding of an independent municipality. From the cases heard, it is clear that the initiators, individual local communities which were joined to another local community or were separated from them, expressed their disagreement with the name and seat or only with the name or seat immediately at the time of founding the new municipalities. From the legislative material no. EPA 803, it is clear that a change was made in the name and seat in the draft Law on founding municipalities to the envisaged municipality of Grad and the name of the municipality of Moravske Toplice - Martjanci in the legislative procedure itself on the basis of amendments, whose reasonings were unargued and general. It is clear from the Law on founding municipalities that in cases of the founding of new municipalities by the uniting of two or more referendum regions, the legislator used a double name, e.g.: the municipality of Cankova - Tišina, the municipality Dobrova- Horjul-Polhov Gradec, the municipality of Gorenja vas - Poljane, the municipality Hodoš - Šalovci. It is not possible to ascertain why it did not use a double name in the founding of the municipality of Vipava. Equally it is not possible on the basis of the legislative material to ascertain the reason which dictated the decision of the seat of the municipality Destrnik - Trnovska vas in Trnovska vas and not in Destrnik. The already cited cases show that the legislator did not behave according to previously defined criteria in deciding the name and seat, which would have ensured that there was no arbitrary decision-making and that the legislator would treat equal cases equally.

12. By decision no. U-I-144/94 of 15/7-1994 (OdlUS 95/III) the Constitutional Court decided that the third paragraph of article 139 of the Constitution prescribes an advisory referendum, which means that in founding municipalities the legislator is not bound by the expressed wishes of the inhabitants, but must respect it only if this is in compliance with the constitutional concept of a municipality and with legislative criteria.

Although the Constitutional Court has already determined with the cited decision that the referendum is of an advisory nature, this does not mean that the legislator is in no way bound to the expressed wishes of the inhabitants. In its decision no. U-I- 183/94, the Constitutional Court explicitly stated that "the wishes expressed in a referendum do not bind the legislator absolutely and unconditionally" and stressed that the legislator would exceed his constitutional authority "if he did not found municipalities on territories which meet constitutional and legal conditions and in which the inhabitants voted in a referendum for the founding of a municipality". Sothe will of the inhabitants in relation to the name and seat of a municipality expressed in a referendum will generally bind the legislator, except in cases in which the name elected by referendum were not to correspond to specific criteria on the name and seat or when it had to resolve by its own decision conflicting referendum responses from two or more 6 municipalities or settlements. The legislator will have to produce criteria (e.g., that in the case of the joining of two or more approximately equal municipalities, a double name may be chosen as the name of the new municipality, composed of the names of both the municipalities, and similar), because only previously defined criteria will ensure that in deciding the name and seat of a municipality, there will not be different treatment by the legislator in the same or similar cases, and will prevent arbitrary decision-making. The principle of a state ruled by law (article 2 of the Constitution) requires that the legislator enables citizens to express interests and to validate suitably formed wishes in a legally regulated manner and that the behaviour of the legislator shall comply with the criteria which it has itself defined in a law. So the Constitutional Court also found that the Local Government Act is not in compliance with the Constitution because it does not define criteria and procedures for deciding or changing the name or seat of a municipality.

The Constitutional Court adopted this decision on the basis of articles 30 and 48 of ZUstS, composed of: president Dr. Tone Jerovšek and judges Dr. Peter Jambrek, Mag. Matevž Krivic, Mag. Janez Snoj, Dr. Janez Šinkovec, Dr. Lovro Šturm, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M. Zupančič. The resolution was adopted with six votes against three (judges Krivic, Testen and Šturm voted against). Judge Krivic gave a separate opinion.

President Dr. Tone Jerovšek