U-I-125/94 14.7.1994

R E S O L U T I O N

At the meeting of 14 July 1994 concerning the procedure of testing the initiative of Mr. Branko Levičnik from , of other owners of land parcels and of the University Psychiatric Clinic Ljubljana-, the Constitutional Court

p a s s e d t h e f o l l o w i n g r e s o l u t i o n:

The initiative of Mr. Branko Levičnik and others for the evaluation of constitutionality and legality of the Ordinance on amendments and supplements to the social development plans of the Municipalities of Ljubljana Bežigrad, Ljubljana- Polje and Ljubljana Vič- by programme principles for the eastern by-pass motorway Malence - šentjakob and a section of the northern by-pass road between Tomačevo and Zadobrova in Ljubljana (Official Gazette of the Republic of , no. 10/94) and the Decree on the location plan for the eastern by- pass motorway Malence - šentjakob and a section of the northern by-pass road between Tomačevo and Zadobrova in Ljubljana (Official Gazette of the Republic of Slovenia, no. 27/94) is rejected.

R e a s o n s :

A.

1. With respect to the disputed Ordinance, the initiators justify their initiative by claiming that the procedure of harmonization of land use interests under Article 46 of the Physical Planning Act (Official Gazette of the Socialist Republic of Slovenia, nos. 18/84 and 15/89) has not been carried out; that at the time of public presentation of the Ordinance numerous request were made by a number of members of the local population for alternative routes and solutions regarding the motorway to be shown as well, and that those requests were not taken into consideration; that directly affected members of local communities were not adequately informed about the public presentation and were not allowed to examine relevant drawings in their respective local communities, which is claimed, on the basis of the decision no. U-I-126/93 of the Constitutional Court of 7 December 1993 issued in connection with a similar case, to be contrary to statute; that it is evident from the documents of the Polje Local Community that the general meeting of local community members were not attended by representatives of the party who had proposed the materials, who were supposed to provide explanations concerning the said materials, while the general meeting in the Local Community of šentjakob - Podgorica was not attended by the local population; that it follows from the environmental impacts assessment report that emissions were not evaluated with respect to some critical sections, and that the Environmental Protection Act (Official Gazette of the Republic of Slovenia, no. 32/93) specifies the content of the environmental impacts assessment report, and that the reports on the draft of the location plan were prepared more that a year prior to the enforcement of the said Act; that the routes of the northern by-pass road and the eastern motorway, which run across the protection zone II of the pumping stations of the Ljubljana water supply and distribution system, present a potential danger for approx. 30% of all drinking water for the Ljubljana area.

In disputing the above mentioned Decree, the initiators claim that the said Decree is not in conformity with Articles 45.a, 45.b and 45.d of the Act on Housing Development Planning and Other Use of Land, which were enforced on the basis of Article 1 of the Act on Amendments and Supplements to the Act on Housing Development Planning and Other Use of Land (Official Gazette of the Republic of Slovenia, no. 71/93); that in the noise zone in the Local Community of it would be necessary to demolish the buildings of the University Psychiatric Clinic Ljubljana-Polje located on lot numbers 1120, 1123, 1126 and 1127; that no measures for the protection of nature and cultural heritage have been provided, considering the fact that the operation would affect the park which is indispensable to the treatment of patients and their therapy; that relocation of two buildings would not be an adequate solution at all, because the Psychiatric Hospital would still be located in the triangle formed by two motorways with most intense traffic where patients, staff and environment would be 2 exposed to all of the resulting detrimental effects, and that the two building, if relocated, would still remain in the critical zone of both motorways and the planned tramway track.

2. The Government of the Republic of Slovenia replied on 29 June 1994 to the claims made in the initiative and opposed the claims by the claims which are summarised in this section (A.2.) of the Resolution.

The disputed Ordinance had been adopted on the basis of Article 2 of the Regional Planning and Development Act in Transitional Period (Official Gazette of the Republic of Slovenia, no. 48/90), according to which amendments and supplements to the land use planning components of long- and medium-term municipal social development plans shall be prepared and adopted according to the procedure prescribed in Articles 37, 38 and 39 of the Act on Housing Development Planning and Other Use of Land (Official Gazette of the Socialist Republic of Slovenia, nos. 18/84, 37/85 and 29/86; Official Gazette of the Republic of Slovenia, nos. 26/90, 18/93, 47/93 and 71/93). The provision of Article 46 of the Physical Planning Act, to which reference has been made by the initiators in connection with municipal social development plans, does not apply to the case under consideration in as far as the presentation of alternative routes and solutions is concerned, because it is intended to apply to the preparation and adoption of land use planning components of social development plans of the Municipalities and the Town of Ljubljana and to their amendments and supplements in the period prior to the enforcement of the said Regional Planning and Development Act in Transitional Period. In the process of preparing and adopting the Ordinance on amendments and supplements to the social development plans of the Municipalities, which is under consideration, provisions of Article 37 through 39 of the Act on Housing Development Planning and Other Use of Land were observed, which is proved by the documentation submitted to the Constitutional Court. In as far as the obligation of preparation of alternative expert solutions and their public presentation within the framework of the draft of a detailed physical planning document, Article 36 of the same Act prescribes such obligation exclusively in reference with building plans and land use plans in the case of more complex use of land, but not in reference with location plans. In spite of this, alternative expert solutions were prepared and evaluated in connection with the location plan under consideration.

Alternative solutions concerning the route of the motorways within the settlement area of Ljubljana and other suburban housing estates, or around them, had been prepared even before the enforcement of the long-term plans of the Municipalities and the Town of Ljubljana, and prior to the enforcement of the medium-term plans of all of the five Municipalities of the Town of Ljubljana in 1986. In the procedures of preparing and adopting those plans expert and public discussion were carried out concerning the said alternatives. With the adoption of the long-term plan of the Municipalities and the Town of Ljubljana (Official Gazette of the Socialist Republic of Slovenia, no. 11/86) the long-term solution of the so called "U" system of motorways around Ljubljana was adopted as the most suitable.

Public discussion concerning detailed alternative routes of the by-pass motorway, however, continued until the adoption of the disputed location plan. All remarks and proposals were assembled, under the number 11/376/MC/UT of 10 November 1993, by the Regional and Urban Planning Authority of the Town Secretariat for Urban Planning and Environmental Protection of Ljubljana, which prepared corresponding replies in cooperation with relevant environmental protection agencies. Proposed replies to the remarks and proposals received on the basis of public discussions were considered, according to Article 39 of the Act on Housing Development Planning and Other Use of Land, by Executive Councils of the Municipal Assemblies concerned, and adopted.

In accordance with Article 39 of the Act on Housing Development Planning and Other Use of Land, members of the local communities affected were promptly informed about the public discussions concerning the drafts of the location plan and of amendments and supplements to municipal social development plans. Examination of drawings was also made possible, since the Government made available appropriate documentation.

The Government does not have at its disposal any information of the failure to carry out the public discussion in any of the local communities. According to its information, drafts of the said general acts 3 were presented also in the Local Community of Polje and the Local Community of šentjakob- Podgorica, where public discussion was carried out respectively on 4 and 5 October 1993.

The procedure of preparing and adopting the disputed Decree was formally started at the meeting of the former Executive Council of the Assembly of the Republic of Slovenia on 21 March 1990, with the passing of a resolution on amending the programme of preparation of detailed physical planning documents to be adopted in accordance with the medium-term social development plan of the Republic of Slovenia by the Government (Official Gazette of the Republic of Slovenia, no. 10/90), that is, a few years before the coming into force of the Environmental Protection Act (Official Gazette of the Republic of Slovenia, no. 32/93) on 3 July 1993. After the coming into force of this Act, and prior to the public presentation of the disputed Decree and the public discussion in reference with it, the drafter of the location plan prepared a special study, which brought the existing assessment of environmental impacts into line with Articles 51, 54, 57 and 109 of the Environmental Protection Act. The study served as a technical basis for drafting the location plan, which was publicly presented on the basis of a resolution of the Government on public presentation of the draft of the location plan (Official Gazette of the Republic of Slovenia, no. 48/93). Concerning the impact of the by-pass motorway on the pumping stations of the water supply system of Ljubljana, one should take into consideration the fact that the said location plan was approved by the National Sanitary Inspectorate, the National Directorate for Environmental Protection and Water Regulation and the Public Enterprise for Water Supply and Sewage Disposal of Ljubljana.

The disputed Decree is not in conflict with the Act on Amendments and Supplements to the Act on Housing Development Planning and Other Use of Land (Official Gazette of the Republic of Slovenia, no. 71/93). The said Act only came into force on 14 January 1994, and the Government passed its resolution on public presentation of the draft of the location plan at its meeting of 6 August 1993 (Official Gazette of the Republic of Slovenia, no. 48/93), that is, five months before the coming into force of the Act on Amendments and Supplements, and on the basis of paragraph 2 of Article 41 of the Act on Housing Development Planning and Other Use of Land. The Executive Councils of the Municipal Assemblies and the Town of Ljubljana, also, passed their respective resolutions on public presentation of the draft of amendments and supplements to their planning documents prior to the coming into force of the Act on Amendments and Supplements at their respective meetings of 7 and 8 September 1993. The procedure of preparing and adopting the discussed location plan, then, was started and carried out, in the majority of the cases, in accordance with the former Act on Housing Development Planning and Other Use of Land, and was completed, having regard to provisions of Article 3 of the Act on Amendments and Supplements, in accordance with the new statute.

Article 33 of the disputed Decree in fact specifies that the construction of the eastern motorway and a section of the northern by-pass road will require the demolition of buildings A and F of the Psychiatric Hospital, which are located approx. 200 m from the centre line of the eastern motorway; however, the said buildings would be relocated to a new location in the Fužine housing estate direction in accordance with Article 41, sub-paragraph 2, of the Decree. The provisions of Article 38 of the Decree provide for noise protection by means of embankments and walls, or a combination of both, for the entire complex of the Psychiatric Hospital.

Concerning the measures for the protection of natural and cultural heritage in reference with the operations affecting the Studenec park, the Government explains that it passed the decree on the basis of Article 45.č used in conjunction with Article 45.f, of the Act on Amendments and Supplements, that is, only after the completion of the procedures and the fulfilment of conditions specified in Articles 45.d and 45.e of the Act on Amendments and Supplements, because, until the bringing into line of municipal social development plans with mandatory guidelines of national plans, the location plan was not in conformity with land use planning components of the long-term plan of the Municipalities and the Town of Ljubljana and the medium-term social development plans of the Municipalities of Ljubljana Bežigrad, Ljubljana Moste-Polje and Ljubljana Vič-Rudnik.

The complex of the Psychiatric Hospital is located west of the designed eastern motorway, south of the Zaloška street, east of the Fužine housing estate and north of the river. Thus, the Psychiatric Hospital is not located within the triangle formed by the motorways.

4

The Psychiatric Hospital and its Director were acquainted with pertinent materials on the occasion of public presentations and discussions in local communities in the areas of which the complex of the Hospital is located, as well as through a special discussion concerning the location plan held on 11 March 1994 in the offices of the Ministry of Health.

B.

1. On the basis of the materials submitted by the Government, the following has been established by the Constitutional Court in reference with the procedures carried out in the process of passing the disputed general acts.

According to Article 41 of the Act on Housing Development Planning and Other Use of Land, the Executive Council of the Assembly of the Socialist Republic of Slovenia adopted, at its meeting of 24 April 1986, the programme of preparation of detailed physical planning documents to be adopted in accordance with the medium-term social development plan of the Republic of Slovenia by the Executive Council of the Assembly of the Socialist Republic of Slovenia (Official Gazette of the Socialist Republic of Slovenia, no. 19/86), which provides for the preparation of location plans for some sections of the motorways and in which the motorway concerned was not included yet. The said programme of preparation was amended and supplemented by the Executive Council of the Assembly of the Republic of Slovenia at its meeting of 21 March 1990 (Official Gazette of the Republic of Slovenia, no. 10/90) in such a way that, in accordance with the amendments and supplements to the medium-term social development plan of the Republic of Slovenia, the adoption of a location plan for the motorway Tomačevo-Zadobrova-Malence was provided for.

According to Article 41 of the Act on Housing Development Planning and Other Use of Land, the Government passed its resolution on public presentation of the draft of the location plan for the eastern motorway Malence - šentjakob and a section of the northern by-pass road between Tomačevo and Zadobrova in Ljubljana at its meeting of 6 August 1993 (Official Gazette of the Republic of Slovenia, no. 48/93). The resolution provides that the draft of the location plan shall be sent to the Town of Ljubljana and to the Municipalities of Ljubljana Bežigrad, Ljubljana Moste-Polje and Ljubljana Vič- Rudnik for the purpose of public presentation and discussion to be carried out concurrently with the public presentation and discussion of the draft of amendments and supplements to the long-term development plan and medium-term development plans of the Town of Ljubljana and the above mentioned Municipalities. The duration of public presentation was not to be less than 30 days. Upon the expiry of the period set for public presentation, the respective Executive Councils were to prepare their opinions and proposals and submit them to the Ministry of the Environment and Physical Planning. Then, the Ministry had to submit such comments, together with the amended draft of the location plan, to the Government.

In accordance with Article 2 of the Regional Planning and Development Act in Transitional Period and on the basis of the said resolution of the Government on public presentation of the draft of the location plan, the Executive Council of the Town of Ljubljana passed, at its meeting of 7 September 1993, the resolution on public presentation of the drat of amendments and supplements to the land use planning components of the long-term plan of the Municipalities and the Town of Ljubljana (published in the daily Delo on 9 September 1993), which refer to the eastern motorway Malence - šentjakob and a section of the northern by-pass road between Tomačevo and Zadobrova in Ljubljana. In addition, the Executive Council decided that the draft of the location plan for the said motorway and the by-pass road should also be publicly presented. Public presentation in the period between 15 September and 15 October 1993 was to be carried out in the atrium of the Town House of Ljubljana. It was also specified that, on 12 October 1993 at 6 p.m., the Town Secretariat for Urban Planning and Environmental Protection of Ljubljana should organize a public discussion concerning the presented materials in the great hall of the Town House.

In accordance with Article 2 of the Regional Planning and Development Act in Transitional Period and of the said resolution of the Government concerning the public presentation of the draft of the location plan, a resolution was passed by the Executive Councils of the Municipalities of Ljubljana Bežigrad (meeting of 7 September 1993), Ljubljana Moste-Polje (meeting of 7 September 1993) and Ljubljana Vič- Rudnik (meeting of 8 September 1993) concerning the public presentation of the draft of 5 amendments and supplements to the social development plans of the Municipalities of Ljubljana Bežigrad, Ljubljana Moste-Polje and Ljubljana Vič-Rudnik with respect to the eastern by-pass motorway between Malence and šentjakob and a section of the northern by-pass road between Tomačevo and Zadobrova in Ljubljana, together with programme principles (published in the daily Delo on 14 September 1993).

It was specified that both the draft of the amendments and supplements to the land use planning components of the long- term plan of the Municipalities and the Town of Ljubljana and the draft of the location plan for the eastern motorway Malence - šentjakob and a section of the northern by-pass road between Tomačevo and Zadobrova in Ljubljana should be publicly presented at the same time in accordance with the resolution of the Executive Council of the Assembly of the Town of Ljubljana and the resolution of the Government on public presentation respectively. It was further provided that all of the foregoing documents should be publicly presented at the seats of the Municipalities of Ljubljana Bežigrad, Ljubljana Moste-Polje and Ljubljana Vič-Rudnik, as well as at the seats of the local communities concerned (šentjakob-Podgorica, šmartno, Tomačevo, Jarše, , , Novo polje, Zadobrova-, Polje, Dušan Kveder Tomaž, Jože Moškrič, Rudnik. The published information also said that municipal secretariats for urban planning should during the public presentation, in the period between 15 September and 15 October 1993, organize public discussions according to the following time table: for the Local Communities of šentjakob- Podgorica, Tomačevo, Jarše on 4 October 1993 at 6 p.m., in the great hall of the Municipality of Ljubljana Bežigrad; for the Local Communities of Bizovik, Zadvor, Polje, Novo polje on 5 October 1993 at 6 p.m., in the hall of the Municipality of Ljubljana Moste-Polje; for the Local Communities of Zadobrova- Sneberje, šmartno, Jože Moškrič, Dušan Kveder Tomaž on 6 October 1993 at 6 p.m., in the hall of the Municipality of Ljubljana Moste-Polje; and for the Local Community of Rudnik on 11 October 1993 at 6 p.m., in the offices of the said Local Community.

On 10 November 1993, the Physical and Urban Planning Authority of the Town Secretariat for Urban Planning and Environmental Protection of Ljubljana prepared a report concerning the carrying out of public presentations concerning all of the documents to be publicly presented. The report contains numerous remarks of conceptual character relating to programme principles of the location plan, environmental protection, ownership and legal questions - and corresponding answers. It also includes remarks from the Local Communities of šentjakob - Podgorica and Polje, and those made by the Psychiatric Hospital, and corresponding answers. From the said report and photo-copies of the Minutes of public discussions held in the offices of the Municipality of Ljubljana Bežigrad and Ljubljana Moste-Polje respectively it is evident that the meetings were also attended by representatives of the Town Secretariat for Urban Planning and Environmental Protection and the Physical and Urban Planning Authority of the Town of Ljubljana in the capacity of interpreters of the above mentioned general acts concerning the eastern motorway and the northern by-pass road, as well as by members of the Local Communities of šentjakob - Podgorica, Polje and Novo Polje.

In accordance with Articles 39 and 41 of the Act on Housing Development Planning and Other Use of Land, the above report was accepted by the Executive Council of the Assembly of the Town of Ljubljana by a resolution passed at the meeting of 24 November 1993, by the Executive Council of the Municipal Assembly of Ljubljana Bežigrad by a resolution passed at the meeting of 18 November 1993, the Executive Council of the Municipal Assembly of Ljubljana Bežigrad by a resolution passed at the meeting of 18 November 1993, the Executive Council of the Municipal Assembly of Ljubljana Moste-Polje by a resolution passed at the meeting of 16 November 1993 and the Executive Council of the Municipal Assembly of Ljubljana Vič- Rudnik by a resolution passed at the meeting of 24 November 1993. The before mentioned Executive Councils agreed with answers to the remarks contained in the above report and with the decision to send the report to the Ministry of the Environment and Physical Planning and the Institute of the Republic of Slovenia for Physical Planning.

From the enclosed approvals of the disputed location plan it is evident that, in accordance with Article 39 of the Act on Housing Development Planning and Other Use of Land, approvals were also granted by the National Sanitary Inspectorate (3 May 1994), the National Directorate for Environmental Protection and Water Regulation (21 April 1994), Regional Institute of Ljubljana for Preservation of the Natural and Cultural Heritage (20 April 1994), the Public Enterprise for Water Supply and Sewage Disposal of Ljubljana (18 April 1994) and the company Rast Ljubljana (4 March 1994). 6

On the basis of Articles 49 and 50 of the Physical Planning Act, the Government passed a resolution on 24 February 1994, with which it established that the drafts of amendments and supplements to the land use planning components of the long- term development plan of the Town of Ljubljana including the concept of urban planning, and of medium-term social development plans of the Municipalities of Ljubljana Bežigrad, Ljubljana Moste-Polje and Ljubljana Vič-Rudnik including the programme principles for the eastern motorway Malence - šentjakob and a section of the northern by-pass road between Tomačevo and Zadobrova in Ljubljana were harmonised with mandatory guidelines of land use planning components of social development plans of the Republic of Slovenia.

From the Notes concerning the talks relating to land use problems in connection with the Psychiatric Hospital Ljubljana-Polje, held on 11 March 1994 at the Ministry of Health, it is evident that an agreement was reached between the Ministry of Health, the Ministry of the Environment and Physical Planning, the director of the Institute of the Republic of Slovenia for Physical Planning, the president of the DARS (Motorway Construction Company of the Republic of Slovenia), the president of the Medical Council of the Ministry of Health and the acting manager of the Psychiatric Hospital Ljubljana-Polje, according to which in the event of demolition of buildings A and F of the hospital, these should be substituted by such buildings as would be provided with adequate protection against noise and environmental protection measures (the Notes were also signed by the acting manager of the Psychiatric Hospital).

The disputed Ordinance was finally adopted by the Assembly of the Municipality of Ljubljana Bežigrad (joint meeting of the Chambers of 9 December 1993), the Assembly of the Municipality of Ljubljana Moste-Polje (joint meeting of the Chambers of 22 December 1993) and the Assembly of the Municipality of Ljubljana Vič-Rudnik (meeting the Socio-Political Chamber of 12 January 1994 and the joint meeting of the Chamber of Associated Labour and the Chamber of Local Communities of 26 January 1994). The Ordinance was published in the Official Gazette of the Republic of Slovenia, no. 19/94, of 25 February 1994.

The disputed Decree was passed by the Government at its meeting of 5 May 1994 and published in the Official Gazette of the Republic of Slovenia, no. 27/94, of 20 May 1994.

2. Until the coming into force of the Act on Amendments and Supplements to the Act on Housing Development Planning and Other Use of Land on 14 January 1994, also the disputed Ordinance, that is, the amending and supplementing, as the case may be, of land use planning components of long- term and medium-term social development plans of the Municipalities and the Town of Ljubljana in which the construction of the discussed motorway and by-pass road was planned, was governed by Article 2 of the Regional Planning and Development Act in Transitional Period, which prescribed a more simple procedure in connection with the said plans, such as was prescribed for detailed physical planning documents in Articles 37 through 39 of the Act on Housing Development Planning and Other Use of Land. According to those provisions of the Act, the draft of a general act shall be publicly presented at the seat of the respective Municipal Assembly and in the local communities affected, and, if appropriate, also elsewhere. The duration of public presentation shall not be less than one month. Such public presentation of the draft of a general act shall comprise a brief explanation and annexed drawings and other representations (Article 37). During the public presentation, the draft of the general act shall be discussed in public.

Members of local communities and workers and employees in other communities shall be informed in appropriate manner about the beginning and duration of the public presentation of the draft and of the time set for public discussion (Article 38). Upon the completion of public presentation, the Executive Council of the Municipal Assembly concerned shall consider the remarks and proposals and take up a position on them. On the basis of such positions the draft shall be amended, approvals of competent authorities and organizations shall be obtained and other technical solutions shall be prepared. The so amended draft shall be sent to the Executive Council of the Municipal Assembly, which shall pass the general act by an ordinance (Article 39).

7

In reference with the claim of the initiators, according to which in the procedure of passing the disputed Ordinance Article 46 of the Physical Planning Act, according to which alternative solutions regarding land use shall in the process of harmonization of interests in the framework of the draft of a municipal social development plan be publicly presented, was not observed, the Constitutional Court finds that the said provision of the Act should be applied, mutatis mutandis, in conjunction with Article 36 of the Act on Housing Development Planning and Other Use of Land, according to which alternative versions of building plans and land use plans shall as a rule be prepared; however, this does not apply to location plans such as is the one in the case under consideration (for further information on this question see the explanation concerning the Decree).

In reference with the disputed Decree it should be pointed out that the currently effective legislation concerning the construction of motorways is still based on Article 45 of the Physical Planning Act, whose paragraph 2 stipulates that the medium-term social development plan of the Republic of Slovenia shall within the framework of land use planning components also specify (in line with the guidelines of the long-term development plan of the Republic of Slovenia) the areas within which activities which are important from the point of view of physical planning (which also include motorway construction) will be carried out in the planning period. Detailed physical planning documents for such areas shall be adopted by the Executive Council of the Assembly of the Republic of Slovenia (now the Government).

And the procedure of preparing and adopting a detailed physical planning document, which is adopted by the Executive Council of the Assembly of the Republic of Slovenia (now the Government), is specified by the Act on Housing Development Planning and Other Use of Land.

According to Article 41 of the said Act, the Executive Council of the Assembly of the Republic of Slovenia shall adopt, in cooperation with the Executive Councils of the Municipalities affected, a programme of preparation of detailed physical plans, which are adopted by the Executive Council of the Assembly of the Republic of Slovenia in accordance with applicable provisions of the medium-term social development plan. The draft of a detailed physical plan is sent by the Executive Council of the Assembly of the Republic of Slovenia to the Municipalities concerned for the purpose of public presentation and discussion whose duration shall not be less than one month. Upon the completion of public presentation the Executive Councils of Municipal Assemblies shall prepare their views and proposals concerning the draft of the detailed physical plan and shall sent these to the Executive Council of the Assembly of the Republic of Slovenia. The detailed physical plan is adopted by the Executive Council of the Assembly of the Republic of Slovenia by an Ordinance. From the findings under section B.1. of this Resolution it follows that the procedures prescribed in connection with the passing of the Decree were also observed.

As one of the arguments of the initiators in support of the disputing of the Decree of the before mentioned location plan is the lack of alternative solutions, the Constitutional Court points out that paragraphs 2 and 3 of Article 36 provided that alternative versions of building plans and land use plans should as a rule be prepared, while this did had not apply to location plans.

The said statutory provision also applied to motorways until the coming into force of the Act on Amendments and Supplements to the Act on Housing Development Planning and Other Use of Land on 14 January 1994. From that date on, in reference with motorways an amended procedure of preparation and adoption of the location plan, which is definitely adopted by the Government by a decree (Article 45.g of amendments to the statute) is applied (with reference to other infrastructural buildings and facilities of national importance the statutory provisions have remained unchanged).

Regardless of this, it follows from the statements of the Government that various alternative routes of the motorways through Ljubljana and around it were being prepared already prior to the enforcement of medium-term social development plans of all of the five Municipalities within the Town of Ljubljana. As the result of consideration of those alternatives, the "U" solution around Ljubljana was ultimately accepted.

In connection with the disputed Ordinance the provision of Article 45.d of the amended Act should also be mentioned. Its paragraph 1 provides that, in the case when a motorway location plan is not in 8 conformity with applicable land use planning components of municipal and national long-term and medium-term social development plans, or when it is not based on them, amendments and supplements to such documents shall be adopted simultaneously with the procedure of adopting the location plan by using the procedure specified in this Article and Article 45.e. Although the said provision of the Act applies only to that part of the procedure of adoption of the disputed Ordinance which should be carried out subsequent to the coming into force of the Act on Amendments and Supplement, that is, after 14 January 1994, it had actually been observed prior to that date - as is evident from the materials referred to in section B.1. of this Resolution.

3. On the basis of the actual facts and the legal situation established by the Constitutional Court, the latter finds that the initiative is unjustified. The Constitutional Court finds that all major elements were taken into consideration, particularly the economic and the ecological. The

Constitutional Court has jurisdiction to evaluate the constitutionality and legality of regulations, but its jurisdiction does not include the evaluation of decisions relating to substantial issues. In particular, its jurisdiction does not include the evaluation of a decision concerning the selection of the most appropriate alternative route of motorway construction whenever in the procedure all relevant criteria have been taken into consideration and when the procedure has in all other respects been carried out in compliance with statute. In evaluating the legality of the procedure the Constitutional Court did not enter into more detailed evaluation of such minor infringements of the procedure as may have been committed and in connection with which the claims of the initiator were not substantiated more specifically, bearing in mind that, in the event of abrogation, the repeated procedures relating to public presentation and discussion in local communities would be carried out in accordance with provisions which would be much less rigorous then the ones initially applied.

According to Article 3 of the amended Act, the procedures for adopting location plans and amendments and supplements to municipal physical planning documents which have been started already shall be completed in accordance with the provisions of this Act. The relevant transitional provision of Article 3 of the Act, which came into force on 14 January 1994 and with which essential amendments have been introduced in particular with regard to the preparation and adoption of location plans and the issue of motorway construction permits, should be understood in the sense that the procedures already started in connection with the adoption of location plans and amendments and supplements to municipal physical planning documents should be continued in accordance with the provisions of the amended Act. This at the same time means that all acts done prior to the enforcement of the Act shall remain effective.

The acts that shall continue to be effective include in particular those in connection with the preparation, discussion and adoption of the draft of the location plan and the draft of the modifications and amendments to the medium- term plans of the three Municipalities referred to above.

The Town of Ljubljana and the Municipalities of Ljubljana Bežigrad, Ljubljana Moste-Polje and Ljubljana Vič-Rudnik, as well as the Government, had carried out the major portion of the procedures for the preparation and the passing of the disputed Ordinance and Decree already prior to the coming into force of the Act on Amendments and Supplements, that is, prior to 14 January 1994, this including the public presentation, public discussion and consideration of remarks received on the basis of public discussion of the drafts of amendments and supplements of social development plans of the said Municipalities and the draft of the location plan under consideration. The enforcement of the Act on Amendments and Supplements was followed by the preparation of definitive proposals of amendments and supplements to the social development plans of the before mentioned Municipalities and of the proposal of the location plan concerned, as well as the definitive passing of the disputed Ordinance and Decree. With reference to the disputed Ordinance it may even be inferred from the materials submitted that competent Municipal Assemblies had mainly passed the disputed Ordinance prior to 14 January 1994, in spite of its having been published in the Official Gazette of the Republic of Slovenia subsequent to that date.

9

The procedure of preparation and passing of the two disputed general acts, their drafts included, was carried out in accordance with the above mentioned, then applicable provisions of the Physical Planning Act and the Act on Housing Development Planning and Other Use of Land. With respect to a minor portion of the procedures, which were carried out in connection with the motorway and the by- pass road under consideration subsequent to 14 January 1994, this being the date of coming into force of the Act on Amendments and Supplements to the Act on Housing Development Planning and Other Use of Land, non-conformity with statute may not be said to exist, because, taking into consideration the transitional provision of Article 3 of the Act on Amendments and Supplements, those were carried out only in connection with the definitive passing of the amendments and supplements to the land use planning components of the social development plans of the said Municipalities on the basis of the disputed Ordinance and of the location plan under consideration on the basis of the disputed Decree, while the substantial part of the work had already been completed in the period prior to the coming into force of the Act on Amendments and Supplements.

In connection with the claims of the initiators about inadequate assessment of environmental impacts in reference with the Environmental Protection Act, the endangering of drinking water catchment areas and the impact of the designed motorway on the Psychiatric Hospital and the damaging of natural and cultural heritage, the Constitutional Court entirely agrees with the views stated in the reply of the Government.

C.

This Resolution was passed on the basis of paragraph 2 of Article 26 of the Law on the Constitutional Court (Official Gazette of the Republic of Slovenia, no. 15/94) by the Constitutional Court in the following composition: Dr. Tone Jerovšek, President, and Dr. Peter Jambrek, Matevž Krivic, M.L., Janez Snoj, M.L., Dr. Janez šinkovec, Dr. Lovro šturm, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M. Zupančič, the judges. The Resolution was passed unanimously.

P r e s i d e n t : Dr. Tone Jerovšek