U-I-85/94 20 May 1994 RESOLUTION In a procedure for the assessment of constitutionality and legality on 20 May 1994, the Constitutional Court passed the following resolution: 1. The initiative by the Poljanska Dolina ob Kolpi LC, the council of Draga LC, the chairman of the council of Iška Vas LC, the chairmen of Litija (left bank) and Litija (right bank) LC councils, the chairmen of Bučka LC council, "Alija Kardoša" LC Murska Sobota, Goriška Knjižnica Franceta Bevka of Nova Gorica, the citizens' assembly of Nova Gorica municipality and the chairman of Apače LC Council to begin proceedings for the assessment of individual provisions of the Decree on Defining Referendum Areas for the Founding of Municipalities and the Decree on the Announcement of the Referendum for the Founding of Municipalities (Official Gazette RS, No. 22/94) is accepted. 2. The provisions of the Decree on Defining Referendum Areas for the Founding of Municipalities in Chapter I - namely: - point 22 (Stari Trg ob Kolpi): for the territory of Poljanska Dolina ob Kolpi LC, - point 236 (Ribnica): for the territory of Draga LC, - point 115 (Ig): for the territory of Iška Vas LC, - point 179 (Škocjan): for the territory of Bučka LC - in connection with the provision of Chapter II do not conflict with the Constitution and the law, provided that the provision of Chapter II is understand such that in the listed referendum areas the voting is carried out in such manner as will enable the establishment of the results of the voting for an individual part of the referendum area. 3. The following contested points of the Decree are not contrary to the Constitution and the law: point 37 (Apače), point 105 (Litija), point 150 (Murska Sobota), point 164 (Nova Gorica), point 166 (Solkan), point 167 (Kromberk) and point 168 (Šempeter pri Gorici). 4. The part of point IV of the Decree on Announcing the Referendum for the Founding of Municipalities, which stipulates the wording of the referendum question for referendum area 108 (Gabrovka), does not conflict with the Constitution and the law. 5. When carrying out this resolution the following notice must be posted at every polling station listed in point 2 of this disposition: "On the basis of Constitutional Court resolution No. U-I-85/94 of 20 May 1994, in the area of ....... (name of the area), the referendum results will be established separately, so that the National Assembly will be able to take account of them when forming new municipalities as far as possible with regard to the provisions on local self-government and the formation of new municipalities. - Constitutional Court." The notice must be posted in the voting booths or any other appropriate voting place, and may also be posted in other visible places at the polling station. 6. The Republic Electoral Commission and other competent electoral commissions must ensure that this resolution is carried out. Reasons: A 1. Between 4 and 19 May 1994 the Constitutional Court received, in addition to the two requests for assessment of the constitutionality and legality of point 73 of the Decree on Defining Referendum 2 Areas for the Founding of Municipalities (Koper referendum area), on which it adjudicated with case No. U-I-90/94 of 20 May 1994, another 17 initiatives or differently labelled requests contesting other provisions of this Decree (hereinafter: "the Decree") and in one case also one of the provisions of the Decree on the Announcement of the Referendum for the Founding of Municipalities. At a session on 20 May 1994 nine of these requests were adjudicated on with this resolution; the decisions on others were deferred because by that date the actual situation and legal questions important for the decisions had not yet been adequately clarified. 2. The following requests were adjudicated on with this resolution: - the proposal by the council of Poljanska Dolina ob Kolpi LC to annul point 22 of the Decree - of 3 May 1994 (U-I-85/94), - the constitutional complaint by the council of Draga LC against point 236 of the decree - of 5 May 1994 (U-I-88/94), - the complaint by the chairman of the council of Iška Vas LC against point 115 of the Decree - of 29 April 1994 (U-I-87/94), - the request by the chairman of the council of Bučka LC to partially annul point 19 of the Decree - of 10 May 1994 (U-I-98/94), - the lawsuit/constitutional dispute by the chairman of the council of Apače LC on the constitutionality of point 37 of the Decree - of 16 May 1994 (U-I-106/94), - the initiative by the chairmen of Litija (left bank) and Litija (right bank) LC to begin the procedure to assess the constitutionality and legality of point 105 of the Decree and the provisions on the wording of the referendum question for referendum area 108 (Gabrovka) in Chapter IV of the Decree on the Announcement of the Referendum for the Founding of Municipalities - of 5 May 1994 (U-I-93/94). - the initiative by "Alija Kardoša" Murska Sobota LC to assess the constitutionality and legality of the 105th point of the Decree - of 12 May 1994 (U-I-101/94), - the initiative by Goriška Knjižnica Franceta Bevka, Nova Gorica, to assess the constitutionality and legality of points 164, 166, 167 and 168 of the Decree - of 12 May 1994 (U-I-102/94) and - the initiative by the citizens' group from Nova Gorica municipality to assess the constitutionality and legality of points 164, 166, 167 and 168 of the Decree - of 12 May 1994 (U-I-103/94). For the purpose of joint consideration all the cases were combined under number U-I-85/94. 3. The requests were sent to the National Assembly for a reply, and explanations in connection with them were requested from the Government Service for Local Self-Government Reform. At the time of the session at which the resolution was adopted, the Constitutional Court had received replies in cases Nos. U-I-85, 87, 88 and 90/94, and explanations or opinions on the same cases from the Government Service for Local Self- Government Reform, as well as for U-I-101, 102 and 103/94. In accordance with Article 300, second paragraph, of the Standing Orders of the National Assembly, the reply was given by the Secretariat for Legislation and Legal Affairs on the basis of the opinions and standpoints of the NA Commission on Local Self-Government. The reply by the NA first lists the basic positions that were taken into account by the NA when adopting the Decree and which should also be considered when assessing the constitutionality and legality of the contested provisions of the Decree: - proposals by inhabitants on the definition of referendum areas are not binding upon the National Assembly when making final decisions. According to Article 8, first paragraph, of the Law on the Referendum for the Founding of Municipalities ("the LRFM"), the NA, after receiving the proposals, took into account the areas and links between settlements as well as current ethnically mixed areas, which logically means that the proposals are, as a rule, corrected. This also follows from the possibility of deciding on complaints submitted under Article 8, second paragraph, of the LRFM, - so the NA may stipulate its own rules and criteria for dealing with or taking into account proposals and objections. The proposals by inhabitants serve as essential foundations in decision-making, which is also apparent from the fact that deciding on these proposals runs in two stages, by publishing the first decision of the NA in the public media, etc. The NA does not only follow the proposals and objections when it has very well-founded reasons (not meeting the conditions for a municipality, territorial integrity or links between settlements, division of settlements and ethnically mixed areas), and also implements a certain general policy on the transformation of municipalities, which lies within its political obligation as the legislator, 3 - the proposals received are not necessarily a reflection of the majority popular will, which will be properly expressed only at the referendum. The defining of the referendum areas therefore does not prejudge the decisions on the municipal areas, which will be adopted only after the law is passed. In the preparations for this law not only will the will of an individual referendum area be taken into account but also that of its parts: by polling stations, settlements or local communities. Such manner of establishing of results is also planned for the areas disputed in these proceedings before the Constitutional Court (Draga, Iška Vas, Poljanska Dolina ob Kolpi and Koper local communities), - the contested decree as the enabling act for the LRFM in no way conflicts with the law, neither in terms of its contents nor formally; neither does it conflict with the Law on Local Self-Government or the constitutional provisions on local self-government. The competent central working body therefore did not suggest any changes to the Decree in the listed cases. On the basis of these principles the reply also listed more detailed standpoints in the discussion of specific contested cases. B-1 In terms of their contents, the Constitutional Court considered the applications that were labelled differently to be initiatives. The requests from Article 23, paragraph one, indent 7, of the Law on the Constitutional Court (Official Gazette RS, No. 15/94) may be lodged only by representative bodies of the new local communities, founded in accordance with the Constitution, which current local municipalities are not. Their legal interest in lodging initiatives or that of their representatives should be recognised since such legal interest belongs to every inhabitant of a disputed area.