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 Globoka, 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 Ljutomer 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 Ljubljana "Criteria for defining towns in Slovenia" 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.