REPUBLIKA SLOVENIJA USTAVNO SODIŠČE

U-I-119/98 17.4.1998

DECISION

At a session held on 17 April 1998, in a proceeding for assessing constitutionality and legality commenced on the initiative of the local communities of Benedikt, Cerkvenjak, Destrnik, Dobje, Horjul, Kamna Gorica, Kropa, Lenart, Ljubno, Mirna Peč, Nova Gorica, Podlehnik, Podnart, Polana, Solkan, Srednja Dobrava, Sveta Ana, Sveti Andraţ, Sveti Jurij, Sveta Trojica, Šmarjeta, Trzin, Voličina, Ţetale and Ţirovnica, Initiative committee of the village of , Urban municipality of Nova Gorica, Municipality of Lenart, Municipality of Nazarje and others, the Constitutional Court

reached the following decision:

1. It is in conflict with the Constitution that the Decree on holding referendums and determining referendum regions for founding municipalities and for determining or changing their regions and holding referendums for changing the name and seats of municipalities (Official Gazette RS, no. 21/98) does not contain provisions on holding a referendum in the region of the municipality of Destrnik - Trnovska vas in relation to the seat of the municipality. The National Assembly must rectify this conflict with the Constitution not later than 20 May 1998 such that a referendum is held in the region of Destrnik - Trnovska vas.

2. It is in conflict with the Constitution that the Decree does not contain provisions on holding a referendum in the region of the settlement of Prihova in relation to separation from the municipality of Mozirje and inclusion in the municipality of Nazarje. The National Assembly must rectify this conflict with the Constitution not later than 20 May such that a referendum is held in the appropriate regions.

3. It is in conflict with the Constitution that the Decree does not contain provisions on holding a referendum on separating parts of the municipalities into independent municipalities in the following regions: Benedikt, Cerkvenjak, Lenart, Sveta Ana v Slovenskih Goricah, Sveti Jurij v Slovenskih Goricah, Sveta Trojica v Slovenskih Gorica, Voličina, Sveti Andraţ v Slovenskih Goricah, Velika Polana, Šmarjeta, Mirna Peč, Horjul, Trzin, Ţirovnica, Lipnica, Podlehnik, Ţetale and Dobje. The National Assembly must rectify this conflict not later than 20 May 1998, such that it adopts a decree whereby a referendum will be held in the appropriate regions.

4. Point I/23 of the Decrees is not in conflict with the Constitution if it is interpreted such that in the referendum on founding municipalities and for changing their regions which is called for Sunday, 19 April 1998, in the referendum regions under point I/23 of the cited decree, the referendum result is established individually for the region of the settlement of Globoka.

5. Point I/7 of the Decree is not in conflict with the Constitution.

6. The parts of the initiative cited in the introduction to this decision which refer to the Procedure for Founding Municipalities and for Determining Their Regions (Official Gazette RS, no. 44/96), shall be separated from case no. U-I-119/98 and dealt with individually.

Reasoning

A.

1. The local community of Destrnik impugns the Decree on holding referendums and determining referendum regions for founding municipalities and for determining or changing their regions and 2 holding referendums for changing the name and seats of municipalities (Official Gazette RS, no. 21/98 - hereinafter: OdlRR), because the National Assembly did not with it call a referendum on changing the seat of the municipality of Destrnik - Trnovska vas such that it would become Destrnik instead of Trnovska vas. The initiator refers in this to the decision of the Constitutional Court U-I-304/94 (OdlUS IV, 114). The initiative committee of the village of Globoka of the municipality of and Franjo Kardinar impugn OdlRR because it classifies the settlement of Globoka in the referendum region for the founding of an independent municipality of Razkriţje. They assert that the classification of this settlement in the municipality of Razkriţje is in conflict with the will of the inhabitants of this settlement and that the settlement is more connected with Ljutomer than with Razkriţje. They propose that the Constitutional Court order a separate finding of the result of voting in the region of the settlement of Globoka. The urban municipality of Nova Gorica, local community Nova Gorica and local community Solkan impugn OdlRR because it determines referendum regions for founding an independent municipality of Šempeter - Vrtojba. The initiators state that by the founding of this municipality the town is unconstitutionally divided into a number of municipalities and that it loses some of the conditions for an urban municipality (e.g., a hospital). They state that Šempeter and Vrtojba are not in fact independent settlements, but part of the urban region and the urban decree on planning regulation conditions in the wider urban region of Nova Gorica of 1993 considers Šempeter and Vrtojba to be part of the wider urban region of Nova Gorica. They also refer to material of the Institute of Geography of the University of "Criteria for defining towns in " which in the list of towns with suburbs enumerates in the context of the town of Nova Gorica also Šempeter and Vrtojba. The municipality of Nazarje and some other initiators impugn the finding resolution of the National Assembly on the fact that specific proposals for founding municipalities and changing their regions do not meet the constitutional and statutory conditions (Resolution no. 005-01/95- 4/15 of 19.3.1998) in the part which refers to the finding that the proposal for separating parts of the municipality of Mozirje (settlement of Prihova) and its inclusion in the municipality of Nazarje do not meet the statutory conditions.

2. Other initiators impugn either the cited finding resolution of the National Assembly or OdlRR because it does not contain provisions on holding a referendum in specific regions. The Constitutional Court considered all the initiatives in which the initiators claim that a referendum should have been called on the founding of a municipality in a specific region (including those with which the initiators impugn the cited resolution of the National Assembly) to be initiatives for a judgement of the constitutionality and legality of OdlRR. The initiators claim that the National Assembly behaved arbitrarily in deciding in which regions a referendum on founding a municipality would be held.

Some state that their regions in which the National Assembly did not hold a referendum for founding a municipality meet the conditions under article 13 of the Local Government Act (Official Gazette RS, no. 72/93, 6/94 - odl. US, 45/94 - odl.US. 57/94, 14/95, 20/95 - odl.US, 63/95, 73/95 - odl.US, 9/96 - odl.US, 44/96 - odl.US, 26/97, 70/97 and 10/98 - hereinafter: ZLS) and that in relation to the founding of a municipality in these regions, reasons under the second paragraph of article 13a. ZLS are given. Numerous initiators assert that the National Assembly dealt with similar proposals unequally, so that it called a referendum in regions which, in relation to fulfilling the conditions under articles 13 and 13a ZLS, are comparable with regions in relation to which it rejected a proposal or found that constitutional and legal conditions for the founding of a municipality were not met.

3. Some of the initiators under the previous point claim that the National Assembly did not decide at all on their proposal for holding a referendum (these are proposals for the holding of a referendum in the following regions: Ţirovnica, Lipnica, Dobje, Ţetale and Podlehnik), although they submitted initiatives or applications for the founding of a municipality in good time.

B. - I.

4. The local community of Destrnik proposed the implementation of a referendum on changing the seat of the municipality. In their introductory definitions of proposals for introducing a procedure for founding a municipality or changing its region, of 3.7.1997, the Government supported the proposal, but in the opinion on proposals of 15.1.1998, it withdrew its support. In the meantime, namely, the Amending and Supplementing ZLS Act had been adopted, by which measures for determining the 3 seat of a municipality were set. The second, third, fourth and fifth paragraphs of the amended article 9 ZLS determine:

"The Act shall also determine the seat of a municipality.

The will of the inhabitants of settlements included in the municipality on the name and seat of the municipality or its change shall be established by referendum.

The name of the municipality shall be determined according to the name of the central or other settlement in the municipality or by a district name. The name of a municipality may consist of the names of a number of settlements in the municipality. The name of the municipality must differ from the name of other municipalities. The central settlement shall normally be decided as the seat of the municipality.

In determining the name and seat of a municipality it is necessary to bear in mind historical and traffic aspects and existing general regional characteristics."

5. The Government withdrew support for the proposal for carrying out a referendum on the seat of the municipality of Destrnik- Trnovska vas with the reasoning that Trnovska vas better matched the definition of the central settlement. This finding is not sufficient reason for rejecting the proposal for holding a referendum on the question. In case no. U-I-304/94 (OdlUS IV, 114), the Constitutional Court found conflict with the Constitution of articles 2 and 3 of the Founding of Municipalities and Determining Their Regions Act, because the will of the inhabitants was not established in relation to the name and seat of municipalities. In the reasoning, it stressed that it was not necessary in order to rectify the conflict to hold a referendum in all municipalities, but only in those in which the name and (or) seat was disputed - among these it also cited the municipality of Destrnik - Trnovska vas. Holding a referendum in this region is thus a constitutional obligation of the National Assembly. The Constitutional Court found a legal void in OdlUS and charged the National Assembly to rectify it by holding a referendum.

6. The rejection of the proposal for separating part of the municipality of Mozirje (the settlement of Prihova) and its inclusion in the municipality of Nazirje is also unfounded. The Government reasoned its negative opinion on this only with the statement that "there are not well-founded reasons for the separation and inclusion in a neighbouring municipality". Such an explanation is inadequate, so the National Assembly must hold a referendum on the proposal of the municipality of Nazirje.

7. In relation to the region Šempeter - Vrtojba, the Constitutional Court found that all the constitutional and statutory conditions for founding a municipality are met. In the preliminary determination of 3.7.1997, the Government also supported the proposal but then in the opinion of 15.1.1998, it withdrew the support on the grounds that it followed the standpoint of the municipal council, which claims that there would be a truncation of the town by the separation of the disputed region. The Constitutional Court considers that the founding of a municipality in the region of Šempeter - Vrtojba would not be unconstitutional or illegal.

8. The initiative committee for the village of Globoka and Franjo Kardinar impugn OdlRR because it places the settlement of Globoka in the referendum region for founding a municipality of Razkriţje. The initiators state that the settlement is gravitated towards Ljutomer and that in a referendum in 1994, the inhabitants of the settlement of Globoka already voted against the founding of an independent municipality of Razkriţje. In case U-I-94/94 (OdlUS III, 59) the Constitutional Court found that constitutional and statutory reasons are given for it to be necessary to establish separately the result of voting in the region of the settlement of Globoka as part of a referendum region. The Constitution determines in the first paragraph of article 139 that a municipality embraces the region of a settlement or a number of settlements which are linked by the common needs and interests of the inhabitants. Possible opposition of the inhabitants of a settlement to inclusion in a specific municipality can be an important element for judging the fulfilment of the constitutional conditions for founding a municipality. So the Constitutional Court also at that time considered that it is necessary in view of the disputed inclusion of the settlement of Globoka in the referendum region for the founding of a municipality of Razkriţje, to establish in particular the will of the inhabitants of this settlement. 4

B. - II.

9. The principle of local government is classified among the basic provisions of the Constitution and is more precisely defined in a special section on local and individual self-government. The right to local self-government is an inescapable consequence of respect for the basic constitutional guarantee of local self-government ("The autonomy of local government in Slovenia is guaranteed." - article 9 of the Constitution) as an institutional framework for deciding on local public affairs and the basic constitutional right of everyone to participation in the administration of public affairs (article 44 of the Constitution). Thus the European Charter of Local Government also states:

- that local authorities are one of the main bases of any democratic government,

- that the right of citizens to cooperate in the administration of local affairs is one of the democratic principles which are common to all member states of the Council of Europe, and - that this right can be most directly exercised on a local level. The Charter introduces the definition of local self-government in article 3 as "the right and obligation of local authorities within the bounds of the law to arrange and administer essential parts of public affairs within their own jurisdiction and to the benefit of the local population".

10. Constitutional provisions on local government dictated the establishment and guarantee of the basic conditions for realising local self-government after the period lasting several decades of "Yugoslav communes". This basic aim is realised such that regions and the boundaries of new municipalities are created in such a way that the state takes over into its own implementation state administrative affairs and self-government competencies of constitutionally regulated municipalities are defined. Slovene legislation therefore establishes a network of self-governing local communities in the sense of "reform from below upwards", on the basis of the democratically expressed will of citizens on local regions in which they wish to found "their own" municipalities as natural and functional local communities. The task of a state ruled by law is to enable citizens to express their interest and exercise a suitably formed will in a legally regulated and predictable manner - decision of the Constitutional Court no. U-I-13/94 of 21.1.1994 (OdlUS III, 8).

11. The Constitutional Court has defined in a number of its decisions the central elements of a constitutionally based municipality. A municipality is a basic local community, whose constitutional bases are conditioned by (1) common needs and interests, (2) population, (3) one or more settlements, (4) which cooperate in the administration of public affairs of a local nature and (5) independently, that is to say self-governed in relation to the state. A municipality is thus a living community of people who live in the region of one or more mutually connected settlements. Their territorial connectedness is a specific characteristic of them, on the basis of which is also created a network of inter-personal and neighbourly relations and a consciousness of membership of a municipality as a basic territorial community. The common needs and interests of the inhabitants of one or more settlements motivate their co-operation in self-government, that is to say in relation to the state, the relatively autonomous administration of public affairs of a local nature. The constitutional concept of a municipality also presupposes that in relation to the number of its inhabitants and other circumstances, a municipality will be capable independently of administering local affairs.

12. A municipality corresponds to the local links of the inhabitants of a specific region. It is marked by the spatial and social proximity of the citizens and represents a knot of social relations which conditions living in a locally bounded region.

Common life unfurls through numerous and various economic, social and cultural links which enable the satisfaction of an important part of the needs and interests of the inhabitants of a local community. When a person matures, grows up in a local community or in a municipality, he also develops ever more social commitments which go beyond the narrow circle of the family. So a municipality also represents in a contemporary society the most important social bonds between a person and his family on the one hand and the wider community and the state on the other. The regions of a municipality normally correspond to the life bonds of employment, housing and free time, which condition the circle of activities during a normal working day. 5

13. The constitutional basis of a self-governing municipality is bound to the above definition of the concept of a local community or municipality as a natural historical, geographical and social community. In relation to the state, its original competence to arrange all specifically local matters in accordance with law defines a municipality. Municipalities and local self-government are the basis of the state arrangement in which the democratic process unfurls from below upwards - decision of the Constitutional Court no. U-I-183/94 of 9.11.1994, OdlUS III, 122).

14. The process of introducing the constitutional foundation of local government began with the taking effect of the Local Government Act, and continued in 1994 when the process of establishing the first network of municipalities as basic self- governing local communities in compliance with the provisions of articles 138 and 139 of the Constitution, took place. With the Founding of Municipalities and Determining Their Regions Act, 147 municipalities were founded. After the adoption or validation of this law, the Constitutional Court received a number of initiatives and demands for the assessment of its constitutionality. It decided that articles 2 and 3 of the Founding of Municipalities and Determining Their Regions Act (Official Gazette RS, no. 60/94 - hereinafter: ZUODNO) are in conflict with the Constitution for reasons cited in the reasoning of the decision (decision no. U-I-183/94, OdlUS III, 122). Among reasons for anticonstitutionality, arbitrariness of the legislator is especially stressed. The Constitutional Court stated in the cited decision: "(...) the criterion of number of inhabitants does not have absolute, but relative validity, and it is thus necessary to respect it in the context of the entire provisions for founding a municipality and on the basis of a constitutionally based municipality as a self-governing local community. (...) The subject of assessment of the National Assembly is whether a municipality will be founded in a specific region on the basis of the new article 13a of the Local Government Act, which also allows a municipality to be founded in a region which has less than 5,000 inhabitants, if of course reasons for this are given under this article. (...) It is constitutionally permissible for the National Assembly not to respect strictly the condition of number of inhabitants, but in proportion to reasons which justify the founding of municipalities with less than 5,000 inhabitants. (...) However, in the use of criteria which it has set itself, the National Assembly may not behave arbitrarily, such that in founding municipalities it treats differently the same objective situations and, on the other hand, treats different actual circumstances the same. (...) The National Assembly must behave consistently and treat the same the demands of all inhabitants of all regions to form in their regions independent municipalities. This finding applies in particular to demands for founding independent municipalities in regions:

- which do not deviate from constitutionally based municipalities. - which are capable of satisfying the needs and interests of their inhabitants and to fulfil other tasks in compliance with the law, - which do not reach the number of 5,000 inhabitants but in relation to this measure are equated with the average size of municipalities already founded by law, which also do not meet the numerical criterion,

- and with which there exists any of the statutory reasons which justify the founding of a municipality with less than 5000 inhabitants, especially if the inhabitants have expressed in a referendum the majority wish to found an independent municipality."

15. With the cited decision, the Constitutional Court charged the National Assembly to rectify the discordance of ZUODNO with the Constitution not later than six months prior to the holding of the next local elections.

16. The conditions for founding a municipality are determined in articles 13 and 13a of the Local Government Act.

Article 13

"A municipality must be capable of satisfying the needs and interests of its inhabitants and fulfil other tasks in compliance with the law.

It shall be considered that a municipality is capable of satisfying needs and fulfilling tasks under the previous paragraph in its region if the following conditions are met: - eight year schooling (complete primary school); 6

- primary health care of citizens (health centre or health station);

- provision of the necessities of life (shop with foodstuffs and general goods);

- public utility infrastructure (provision of drinking water, removal and purifying of waste water, supply of electrical energy);

- postal services;

- financial services of a savings bank or bank;

- library (general educational or school);

- premises for administrative activities of a local community." Article 13a

"A municipality shall have at least 5000 inhabitants.

Because of geographical, border, nationality, historical or economic reasons, a municipality may exceptionally also have less than 5000 inhabitants.

In the founding of a municipality, the criteria under articles 13 and 13a must be respected in entirety."

17. The crucial measures that the legislator determined in articles 13 and 13a ZLS in order to concretise constitutionally based municipalities, are a specific number of inhabitants and the existence of collective needs which the municipality is supposed to satisfy. The Constitutional Court has already stressed that in creating a network of local government and in the founding of concrete municipalities, it is necessary to respect in entirety all the statutorily regulated measures in their mutual interconnectedness. This is also determined in the third paragraph of article 13a ZLS.

18. In relation to the number of inhabitants, it is necessary to bear in mind that the lower number of 5,000 citizens has not absolute, but relative validity. The Constitutional Court found that at least a third of municipalities already founded do not achieve the lower limit of number of inhabitants (5000) determined by ZLS. It further found that geographic, border, nationality, historical or economic reasons which justify the founding of a municipality with less than 5000 inhabitants were given not only exceptionally but with a fair number of municipalities already founded, and also in regions for which the initiators claim that they meet the conditions for founding an independent municipality although they do not have 5000 or more inhabitants. It assessed this fact in relation to constitutionally based municipalities as self-governing local communities (U-I-183/94, OdlUS III, 122).

19. The criterion of number of inhabitants, from which there are possible exceptions, is thus necessary to respect in the context of the entire conditions for founding municipalities. Article 13a ZLS, namely, allows a municipality to be founded if reasons are given under this article (geographic, border, nationality, historical or economic). In such cases, it is not possible successfully to introduce anticonstitutionality of forming a municipality. It is, namely, constitutionally permissible that the National Assembly does not respect strictly the condition of number of inhabitants, but in proportion to reasons which justify the founding of municipalities with less than 5000 inhabitants.

20. The legislator may not behave arbitrarily in allowing the founding of municipalities with less than 5000 inhabitants. If he interprets the reasons on which exceptions are based widely in the case of some regions, he must also interpret them such in relation to other comparable regions. The network of municipalities which the National Assembly set up with ZUODNO indicates a very wide use of the possibility of deviation from the condition of 5000 inhabitants. Among existing municipalities, namely, two have less than 1000 inhabitants, 14 municipalities have from 1,000 to 3,000 inhabitants, and 35 municipalities have from 3,000 to 5,000 inhabitants (source: Introducing local government in Slovenia, supplement of proposals for the founding of municipalities with the prior opinion of the Government RS, p. 3). The National Assembly, in the then procedure for founding municipalities and changing their 7 regions, did not have the right to use other measures for allowing exceptions under article 13a than it used in 1994 - except if it had decided to introduce stricter measures also for existing municipalities.

21. The text of article 13a ZLS which determines conditions for founding a municipality must be understood also in the programmatic sense and not only in the sense of absolute institutional condition. It is thus not to be understood such that in regions in which a municipality is supposed to be founded all the institutions cited in these provisions must already be operating; it is important that it is possible in the region to establish the existence of individual and public needs, for the satisfaction of which these institutions are intended. A local community which has still not been founded by law as a municipality but wishes to become one, must therefore demonstrate the existence of the legally envisaged individual and collective needs which are supposed to be satisfied in the new municipality. The law therefore does not set a condition which the not yet established local community must fulfil in the municipality from the point of view that it would demand, even prior to founding, the necessary existence of suitable local institutions which are supposed to satisfy demonstrated local need. Perhaps a local community wishes with its formation into a new municipality to create the organisational and financial conditions for establishing suitable local public services. The existence of institutions - for example a health centre - must be considered as a circumstance of a relative nature, and not an absolute condition. This circumstance, namely the existence of institutions, is dependent on economic, geographic and other conditions which define the local "market" for suitable institutions and temporal cost distance of satisfying appropriate needs. A different interpretation of article 13 ZLS would lead to a charmed circle since the existence of suitable institutions to a large extent is legally conditioned on the existence of a municipality as a legal person. With the founding of the first network of municipalities, it was conditioned on the given circumstances, which could in individual cases also depend on historical coincidence.

22. In the founding of the existing network of municipalities (ZUODNO) and in its current further development (OdlRR), the legislator respected the described relative nature and programmatic point of view of conditions under article 13 ZLS.

Among the referendum regions enumerated in OdlRR, some would not meet the statutory conditions in the case of a strict interpretation of article 13 ZLS (Jezersko, Solčava, Hodoš, Verţej, Razkriţje). Also because the National Assembly rejected the relative importance of conditions under article 13 in some case, it is also bound to respect such in all other cases.

23. When the Constitutional Court analysed the proposals for founding municipalities to which the initiatives refer, it found that regions in which new municipalities are proposed are completely comparable in their characteristics with regions of already founded municipalities and that they are not in conflict with the constitutional concept of a municipality. These regions embrace a settlement or a number of settlements which are linked by the common needs and interests of the inhabitants. The number of inhabitants in these regions ranges from 1,236 to 4,222 - by this criterion, too, they are entirely comparable with existing municipalities (see point 20 of the reasoning). In all cases, the proposers state reasons under the second paragraph of article 13a ZLS. Comparison with municipalities founded in 1994, as well as analysis of the referendum regions in which the National Assembly called a referendum with OdlRR, shows that in their decision making in both cases - both in the founding of municipalities in 1994 and in the further process of creating a territorial network of municipalities - in using the statutory criteria for founding concrete municipalities, it interpreted these criteria flexibly, widely and respecting the specific circumstances of cases in their mutual interlinkage. In this, the National Assembly behaved within the space of manoeuvre which the constitutional basis of municipalities gives it, although it did not understand quantitative and institutional measures in a strict or formal sense.

24. It follows from what has been said that the National Assembly, in that it did not call referendums in some regions which are comparable with the regions of current municipalities and correspond to the constitutional basis of a municipality as a basic local community, behaved arbitrarily. By the founding of a larger number of municipalities with fewer than 5000 inhabitants, fewer than 3000 and even fewer than 1000, the legislator established a mild measure with ZUODNO for introducing exceptions under article 13a ZLS. It must also follow this in the current procedure of transforming the network of municipalities. If it wished to make the measures stricter, it should also have introduced them in 8 relation to existing municipalities, which it did not do. Instead of using the same mild measure for deviating from the condition of 5000 inhabitants as in 1994, it restrictively rejected some proposals for founding municipalities because they did not meet the constitutional and statutory conditions.

25. The Constitutional Court therefore charged the National Assembly also to hold referendums in all regions to which the initiatives refer. After analysis of the initiatives and the material of the Government (prior opinion, opinion on the proposals) it came to the conclusion that among the regions to which the initiatives refer, there are no regions which deviate from the constitutional basis of a municipality, or from measures which the National Assembly established for respecting exceptions from the condition of 5000 inhabitants.

B. III.

26. The Constitutional Court also studied in particular the cases in which the National Assembly, for procedural reasons, did not deal with applications or initiatives for founding a municipality.

- The local community of Dobje, prior to the taking effect of the Procedure for Founding Municipalities and for Determining Their Regions Act (Official Gazette RS, no. 44/96 - hereinafter: ZPUO) on 24.8.1995 sent an elaborated proposal to the National Assembly for the founding of a municipality of Dobje. On 27.8.1996, it sent an initiative for commencing the preliminary procedure for founding a municipality to the municipal council of the municipality of Šentjur. On 18.9.1996, the council of the local community sent to the National Assembly a note in which it reports that "it avails itself of article 8 ZPUO and submits a proposal for commencing the procedure".

- The local communities of Srednja Dobrava, Kamna Gorica, Kropa, Ljubno and Podnart on 26.5.1997 submitted to the National Assembly an initiative for founding a municipality of Lipnica. The municipal council of the municipality of Radovljica, by special resolution of 28.1.1998, confirmed agreement with this initiative. - The council of the local community of Podlehnik sent a proposal for the founding of a municipality of Podlehnik to the National Assembly on 13.1.1997. On 27.1.1997, the council of the municipality of Videm adopted a resolution whereby "it contracts the council of the local community of Podlehnik as a legal person to conduct all activities for separating the local community of Podlehnik from the municipality of Videm". On 28.10.1997, the municipal council of the municipality of Videm sent to the National Assembly a further positive opinion on separating part of the municipality into a new municipality of Podlehnik. - The local community of Ţetale sent an initiative for commencing the procedure for founding an independent municipality to the municipal council of the municipality of Majšperk. In view of the silence of the municipal council, the initiator believed that it had become a proposer under article 8 ZPUO.

- The local community of Ţirovnica, after obtaining a positive opinion from the municipal council, on 24.10.1996 sent to the National Assembly an initiative for separating part of the into a separate municipality of Ţirovnica. The municipal council gave a positive opinion, but did not take on the role of proposer. On 23.10.1997, the municipal council adopted a resolution on the basis of which it allowed the local community of Ţirovnica, in conformity with article 8 ZPUO, to provide a completed proposal. The initiator sent the completed proposal, with an elaboration, to the National Assembly on 12.11.1997.

27. ZPUO determines in article 7 that the council of a local community or assembly of citizens may provide an initiative for separating part of a municipality into a new municipality. The initiative shall be given to the municipal council, which may propose the separation of part of the municipality into an independent municipality, or reject the initiative. If it does not accept it, the council of the local community or assembly of citizens may undertake the role of proposer (article 8 ZPUO).

28. ZPUO determines in article 4 that the National Assembly "in a procedure under article 14" (in article 14 the law speaks of establishing conditions for founding a municipality and for changing the regions of municipalities and on the calling of a referendum) shall deal with all proposals which have been submitted by the beginning of this procedure. From the material which the National Assembly submitted in answer to the initiative, it is not clear that the National Assembly explicitly determined the date of commencement of the procedure under article 14. The National Assembly only adopted "a 9 resolution on the commencement of a procedure for founding municipalities and for determining their regions" (23.5.1997) and a "resolution on continuing the procedure for founding municipalities and for determining their regions" (27.9.1997), in which it registered proposals accepted and "other initiatives and applications". It is not therefore entirely clear when the "procedure under article 14" ZPUO commenced. The Constitutional Court therefore interpreted the provisions of article 4 ZPUO to the advantage of the submitters of the initiatives. It found that in all cases the councils of the local communities had provided an elaborated initiative for founding a municipality and that the municipal councils - with the exception of the municipal council of the municipality of Majšperk, which neither accepted nor rejected the initiative - had expressed their positive opinion on these initiatives. The procedural conditions were thus met for dealing with these applications as proposals. Although assemblies of citizens were not carried out in all the cited cases, as ZPUO determines, this was not a crucial mistake in procedure since the will of the inhabitants will be expressed in a referendum.

29. In the cases under the previous paragraph of this reasoning, they are proposals which correspond to the conditions under articles 13 and 13a ZLS, understood in the way described in this reasoning. These are regions which have from 1098 to 4010 inhabitants. Because it found that the proposers fulfilled the essential procedural obligations under ZPUO and that the regions to which the initiatives refer are comparable with regions of current municipalities and some referendum regions enumerated in OdlRR, the Constitutional Court charged the National Assembly to hold referendums also in these regions.

C.

30. The Constitutional Court adopted this decision on the basis of articles 21 and 48 of the Constitutional Court Act (Official Gazette RS, no. 15/94), composed of: president Dr. Lovro Šturm and judges Dr. Miroslava Geč-Korošec, Dr. Peter Jambrek, Dr. Tone Jerovšek, Mag. Matevţ Krivic, Franc Testen, Dr Dragica Wedam-Lukiš and Dr. Boštjan M. Zupančič. The first and second points of the judgement proper were adopted unanimously. The third point of the judgement proper was adopted by five votes against three (judges Wedam-Lukiš, Krivic and Testen voted against). The fourth, fifth and sixth points of the judgement proper were adopted by seven votes against one (judge Krivic voted against). Judges Jambrek, Krivic and Testen gave separate opinions.

P r e s i d e n t: Dr. Lovro Šturm