Statistical data: 1 January 1996 - 30 April 1996

Number of decisions

The Constitutional Court had 13 sessions during this period, in which it dealt with 128 cases in the field of protection of constitutionality and legality (cases denoted U- in the Constitutional Court Register) and with 31 cases in the field of protection of human rights and basic freedoms (cases denoted Up- in the Constitutional Court Register and submitted to the plenary session of the Court; other Up- cases were processed by a senate of three judges at sessions closed to the public). There were 279 U- and 222 Up- unresolved cases from the previous year at the start of the period (1 January 1996). The Constitutional Court accepted 128 U- and 80 Up-new cases in the period of this report, confirming the trend of a steady increase in the number of new cases over the last years.

In the same period, the Constitutional Court resolved:
• 57 cases (U-) in the field of protection of constitutional-ity and legality, of which there were (taken by Plenary Court)
- 19 decisions and
- 38 resolutions
• 99 cases (U-) were joined to the above mentioned cases because of common treatment and decision;
accordingly the total number of resolved cases (U-) is 156.
• In the same period, the Constitutional Court resolved 64 cases (Up-) in the field of protection of human rights and basic freedoms (7 decisions taken by Plenary Court, 57 decisions taken by Senate of three judges).
• The decisions have been published in the Official Gazette of the Republic of Slovenia, while the Resolutions of the Constitutional Court are not as rule published in an Official Bulletin but only handed over to the participants in the proceedings.
However, all decisions and resolutions are published or have been submitted to the users:
- in an official yearly collection (Slovene full text version, with the dissenting/concurring opinions, with English abstracts);
- in the Journal Pravna Praksa (Legal Practice Journal) (Slovene abstracts, with the full-text version of the dissenting/concurring opinions);
- since 1 January 1987 via on-line available STAIRS, ATLASS and TRIP database (Slovene and English full text version);
- since August 1995 on Internet (Slovene constitutional case law of 1994 and 1995, as well as some important cases prepared for the Bulletin of the Venice Commis-sion from 1992 through 1995, in full text in Slovene as well as in English <http://www.sigov.si/us/eus-ds.html>).
Since 1995, some important cases in English full-text version have been published in the East European Case Reporter of Constitutional Law, by the Book World Publications, the Netherlands.

Important decisions

Identification: SLO-96-1-001
a) Slovenia / b) Constitutional Court / с) / d) 18.01.1996 / e) U-l-213/95 / f) / g) Official Gazette of the Republic of Slovenia, nos. 61/95 and 8/96; to be published in Odiocbe in sklepi ustavnega sodisca (Official Digest of the Constitutional Court of RS), V, 1996 / h) Pravna Praksa (Legal Practice Journal), Ljubljana, Slovenia (abstract).

Keywords of the systematic thesaurus:
Institutions - Executive bodies - Territorial administrative decentralisation - Municipalities.
Fundamental rights - Civil and political rights – Equality - Scope of application - Elections.
Fundamental rights - Civil and political rights – Electoral rights - Right to be elected.

Keywords of the alphabetical index: Election, local authorities/Electoral units, determination.

Headnotes:
A municipal ordinance on the determination of electoral units for the election of members to local authority councils which, in the determination of the electoral units of local authorities, simply does not make a division into electoral units, is contrary to the statute.

Summary:
Pursuant to Articles 109.5 and 109.6 of the Local Elections Act (valid text, Official Gazette of the RS, nos. 72/93,7/94 and 33/94), the electoral units and the number of local authority council members should as a rule be prescribed by the local authority councils, and only exceptionally by a municipal ordinance (if the local authority is not functioning, if the area of the local authority was changed following the statutory establish-ment of municipalities at the end of 1994 or if the local authority is newly founded). It is clear from Article 6.3 of the municipal statute that the new municipal statute preserves the former local authorities; in other words, it re-establishes them, but on the territory of the "local authorities of the same name that were founded on the territory of the Municipality of Sezana prior to the enactment of the Municipal Statute". In view of this the municipal ordinance should be allowed to regulate these questions only for those local authorities in which councils do not operate, and not for all local authorities in the municipality.
The substance of the contested ordinance is clearly contrary to Article 109.7 of the Local Elections Act (now valid text), which reads as follows: "The electoral units shall be determined so as to ensure the representation of the inhabitants of individual settlements or parts of local, village or district authorities in the council of this authority". The contested ordinance does not divide local authorities into electoral units at all.
In its preliminary examination, when the initiative was accepted, the Constitutional Court believed that Article 3 actually divided the areas of individual local authorities into several electoral units, for the Article states how many local authority members are elected from an individual settlement, but from the reply to the initiative by the municipal council it is clear that the meaning of Article 3 is different. The provisions on how many local authority council members are elected from individual settlements could in fact mean that these settlements thereby actually became electoral units only if the voters in these settlements themselves at separate voting places and on special ballot papers chose their representatives to the local authority council - which was categorically denied by the municipal council in its reply. The provisions of Article 3 therefore mean that all voters in a particular local authority would receive the same ballot paper listing separately the candidates for council members from individual settlements. In compliance with the provision of Article 6 those who received most votes, i.e at least a relative majority, would be elected. The claim of the municipal council in its reply to the initiative that such an arrangement cannot "lead to any different final result than if each settlement were its own electoral unit" is obviously incorrect, since under the contested ordinance all voters in the local authority would decide with their votes on the representative for an individual settlement, including inhabitants from other settlements.

Languages: Slovene, English (translation by the Court).

Identification: SLO-96-1-002
a) Slovenia / b) Constitutional Court / с) / d) 25.01.1996 / e) U-l-106/95 / f) / g) Official Gazette of the Republic of Slovenia, no. 14/96; to be published in Odiocbe in sklepi ustavnega sod/sea (Official Digest of the Constitu-tional Court of RS), V, 1996 / h) Pravna Praksa (Legal Practice Journal), Ljubljana, Slovenia (abstract).

Keywords of the systematic thesaurus:
Constitutional justice - The subject of review – Failure to pass legislation.
General principles - Democracy.
Institutions - Legislative bodies - Composition.
Institutions - Legislative bodies - Review of validity of elections.
Fundamental rights - Civil and political rights – Equality - Scope of application - Elections.
Fundamental rights - Civil and political rights – Electoral rights - Right to be elected.

Keywords of the alphabetical index:
Constitutional Court, re-opening of proceedings / Election, direct, principle / Election to the National Assembly, national list / Legal vacuum.

Headnotes:
The principle of general voting rights means that active and passive voting rights are not restricted by conditions which derive from the personal circumstances of an individual (religious affiliation, sex, property, ideology, profession, education, etc.). Some exceptions are nonetheless permissible (e.g. the conditions of citizenship and a specified age). By the provisions of Article 7 of the Act on Elections to the National Assembly, that a citizen who has reached the age of 18 on the day of voting and whose capacity to contract has not been taken away has the right to vote and be elected as a deputy, the legislator respected in entirety the principle of general voting rights.
The principle of equality of voting rights derives from the general principle of equality before the law, although due to its special significance it has specific particularities. The principle of equality of voting rights means that each voter has the right to cast his vote and that the vote of each elector must have the same weight in the result of the election. In a proportional voting system this principle is satisfied by the appropriate formation of electoral units and an appropriate method of calculation for distributing the mandates.
The principle of equality also embraces equality of passive voting rights (the right to be elected). Also in relation to passive voting rights, the electoral system may not discriminate among individuals. The principle of equality of passive voting rights is not violated with the possibility of determining national lists.
The principle of directness means that voters have the right, without the mediation of the special electoral bodies (associations of professionals) or elected persons (electoral colleges), to decide on the composition of the representative body. This principle is not violated by the possibility of determining candidate lists in which the proposer himself determines the order of the candidates to whom the mandates will go (the so-called closed list), since the final electoral decision is dependent on the voters.
A statutory provision which provides for the possibility of political parties and other proponents of the candidates to determine the lists of candidates which is (at the maximum) a half of the electoral mandates obtained on the basis of the remaining votes from electoral units (the so called national lists) is however contrary to the principle of direct elections insofar as it does not prescribe a mandatory and timely promulgation of these lists.

Summary:
The Constitutional Court had already decided on the constitutionality of Article 93.2 the Act on Elections to the National Assembly (Official Gazette of the RS, no. 44/92) in case no. U-l-36/94 (OdIUS III, 23). The initiative was then rejected because it was unfounded on its face. Since the submitters of the request cited new reasons which allegedly proved an inconsistency of Article 93.2 of the Act on Elections to the National Assembly with the Constitution, the Constitutional Court heard the request and decided on its merits.
The Constitution declares in Article 1 that Slovenia is a democratic Republic. The principle of a democratic arrangement means that the citizens decide on public affairs directly (by referendum) or indirectly (through elected representatives). In order to ensure indirect democracy, the provision of Article 43 of the Constitution is important, as it guarantees to citizens general and equal voting rights. In Article 80 of the Constitution, it is prescribed that deputies to the National Assembly shall be elected by general, equal, direct and secret voting. The Constitution does not regulate the electoral system, but establishes only the basic principles which the legislator must respect in enacting electoral legislation. The electoral system must match the principles of generality and equality of voting rights as well as the principles of freedom, generality, equality, secrecy and directness of voting.
The system of election to the National Assembly is regulated by the Act on Elections to the National Assembly. The legislator chose a proportional electoral system, but modified it so that the State is divided into 8 electoral units in which not all candidates (up to 11 instead) are quoted on ballot-papers. In each of 11 districts within an electoral unit, only one candidate may be quoted in an individual candidate list. By voting for that candidate, the elector votes primarily for the whole list which this candidate represents in that voting district - and in the event of this list winning only one place in the electoral unit as a whole, this place will belong to the candidate from this specific voting district only if, among all 11 (or fewer) candidates from this list, that candidate receives the highest proportion (percentage) of votes at the election. The votes given for a candidate of an individual list, in other words, are counted on the level of the electoral unit as a whole. Part of the mandates are divided on the level of the electoral unit among those lists which achieve (one or more times) the electoral quotient. Mandates thus obtained go to the individual candidates of such list according to the order of the share of votes received in the voting districts. The remaining mandates are divided on the level of the State in relation to the sum of the remaining votes of lists (of the same parties), according to the so-called d'Hondt system of calculation. Mandates which fall to specific lists go to the most successful of the candidates who were proposed in the electoral units in which the list achieved the highest relative remainder of the votes. The exception to this rule is prescribed by the challenged Article 93.2 of the Act on Elections to the National Assembly, which gives the proposers of the lists the possibility of composing a register which contains the order of the candidates from lists proposed in individual electoral units. A maximum of a half of the mandates which fall to the lists on the basis of the division on the State level is allocated to the candidates from the national list
According to the Constitutional Court, the challenged provisions of the statute do not violate the principle of equality, generality and directness of elections. Equally, the principles of equality before the law and a democratic constitutional arrangement are not violated.
The second Article of the Act on Elections to the National Assembly prescribes that "deputies shall be elected according to the principle that each deputy shall be elected by approximately the same number of inhabit-ants". In Article 20, the cited principle is also established in relation to the formation of electoral units. By the provisions of Articles 2 and 20 of the Act on Elections to the National Assembly and the system of counting votes and distributing the mandates, according to which all votes have the same value, the criteria of equality of voting rights are satisfied. The national lists can cause a deviation from the principle that the mandates are obtained by eleven candidates from each electoral unit. However, the principle of equality of voting rights does not guarantee the equal representation of individual regions within the State (in this case electoral units), but only the equal value of the vote of each elector. If a smaller number of deputies is elected from among the candidates in some electoral units, that does not mean that the votes of the voters in this electoral unit have been of less value, since they have been taken into account as a remainder on the State level.
The proposers claimed that the Act on Elections to the National Assembly allows for the possibility that the candidates of the lists who had poorer election results might be elected instead of those who had better election results. The Court rejected this claim, since the distribution of deputy mandates is based on establishing the electoral success of lists, not individual candidates. Voters in voting districts choose primarily among the lists, and do not have the possibility to choose among the individual candidates from one list, so it is not possible to say with certainty whether the electoral success of a candidate in a voting district can be ascribed to the popularity of the candidate or of the list or political party. The success of an individual candidate is thus connected with the success of the list and vice versa. Despite the complexity of the electoral system, the provisions of the Act on Elections to the National Assembly are clear and unambiguous. A voter who is acquainted with the electoral system knows that by the choice of a candidate he has given a vote for the list, although at the voting place he circles the number in front of the name of the candidate. Because the voter's vote is primarily a vote for the list, this vote may in reality assist the electoral success of another candidate (not the one for whom the voter voted). However, this can already happen on the level of the electoral unit, and not necessarily on the level of the distribution of mandates in relation to the remaining votes from electoral units. The situation in which the vote of an individual voter can contribute to the electoral success of the candidate for whom the voter did not vote is not simply a result of the possibility enacted by the legislator to determine a national list (as the submitters of the request believe) but a logical result of the electoral system as a whole.
The principle of equality of passive voting rights is not violated by the possibility of determining a national list, since in accordance with the Act on Elections to the National Assembly, any adult Slovene citizen with the capacity to contract has the right to be elected irrespective of any personal circumstances - thus also the right in compliance with the democratic decision of a political party to appear on the national list.
The claim of the submitters of the request that the national lists cause the composition of the National Assembly to be contrary to the will of the voters and that the principle of a democratic constitutional arrangement is thus violated, does not hold true. By giving a vote to a candidate, a voter votes for a list. It is not possible to claim that by determining a national list a political party obtains the possibility of shaping the appearance of the National Assembly against the will of the electorate, since it is not possible under the electoral scheme to ascertain the will of the voters in relation to the question to which of the candidates from the lists they wish to give their vote.
The claim of the submitters of the request that the composition of the National Assembly is inconsistent with the expressed will of the voters thus also does not hold true. The principle of directness is satisfied on condition that the structure of the list is known to the voters in advance and that it is not changed after voting has been carried out. On this condition, a voter by his vote (without the mediation of a third person) directly influences the election result. In a democratic State the influence of political parties on who shall be the candidates is normal. By the formation of closed lists, parties may, for example, positively influence the structure of the representative body such that they include in the list a comparable number of men and women, members of various professions, social classes, etc.
In order to satisfy the principle of directness, however, the following conditions must be fulfilled:
- the national lists must be composed within an appropriate time prior to the day of voting,
- the national lists must be public; and
- the national lists cannot be subsequently changed.
The arrangement under the Act on Elections to the National Assembly fulfils the first and third conditions. Lists in electoral units must be submitted to the electoral commission of the electoral unit not later than fifteen days prior to the election day (Article 54). The register under the Article 93.2 (the national lists) must be submitted to the Electoral Commission of the Republic within the same time limit. Subsequent changes to their composition are not allowed.
The Act on Elections to the National Assembly does not regulate the procedure for the promulgation of the national lists. Mandatory promulgation is prescribed only for the lists in electoral units and for the list of candidates standing for election in individual voting districts. Article 61 of the Act on Elections to the National Assembly prescribes that both shall be published in the public media not later than fifteen days prior to the election day. Article 64.4 prescribes that it is necessary to post an announcement at voting places with the lists of candidates standing for election. The public media which the Electoral Commission of the Republic defines are bound to publish the list of candidates are defined in the Act on Elections to the National Assembly. The composition of lists in their own electoral units is thus known to electors, although in the ballot-paper only the name of one of the candidates from each list is cited. In relation to the national lists there is no obligation set by the legislator concerning their publication. A voter is thus unable to be acquainted with the names of these candidates. The principle of direct elections is thus violated, since the voter is not acquainted with the choice which the proposer of the list (a political party) has made. Only by the mandatory publication of the national lists is it possible to ensure that, in compliance with the principle of direct elections, the voter retains in his own hands the final decision as to his vote. In the contrary case, a third person (a political party) is inserted between the voter and the person who obtains the mandate, and the voter casts his vote without knowing the effect this will have on the election result (the distribution of mandates).
The Constitutional Court therefore found that despite the compliance in principle of the institution of a national list with the constitutional principles in relation to elections, these principles require the enactment of the mandatory publication of the national lists (a register of the candidates under the Article 93.2) in the public media and their announcement at voting places in the same manner as provided for in relation to the list of candidates in electoral units. The Court thus charged the legislator with removing this inconsistency not later than 1 August 1996.

Supplementary information:
In the reasoning of the decision, the Constitutional Court refers to its decision no. U-l-36/94 (OdIUS lll,23).
Dissenting opinion of a Constitutional Court judge.

Languages: Slovene, English (translation by the Court).

Identification: SLO-96-1-003
a) Slovenia / b) Constitutional Court /с) / d) 25.01.1996 / e) U-l-264/95 / f) / g) Official Gazette of the Republic of Slovenia, no. 9/96; to be published in Odiocbe in sklepi ustavnega sodisca (Official Digest of the Constitutional Court of RS), V, 1996 / h) Pravna Praksa (Legal Practice Journal), Ljubljana, Slovenia (abstract).

Keywords of the systematic thesaurus:
Institutions - Executive bodies - Application of laws - Autonomous rule-making powers.
Institutions - Executive bodies - Territorial administrative decentralisation - Municipalities.

Keywords of the alphabetical index: Local self-government / Municipal statutes, procedure for enactment.

Headnotes:
Regulation of the organisational aspects of local self-government by the State is neither a violation of the constitutional principle that the autonomy of local self-government in Slovenia shall be guaranteed, nor of other provisions of the Constitution, if by such regulation the legislator pursues a constitutionally admissible goal (the ensuring of equal standards of democracy and legal security on the entire territory of the State) and if in doing so it does not resort to unnecessary or disproportionate measures.

Summary:
It is provided in Article 9 of the Constitution that the autonomy of local self-government in Slovenia shall be guaranteed, and in Article 140.1 that the range of duties and functions performed by a municipality shall include such general matters affecting only the people of that municipality, as the municipality may independently prescribe. The State must comply with these constitutional provisions and may not with its statutes and regulations interfere with the guaranteed sphere of local self-government.
It is constitutionally admissible for the State to regulate the organisation of organs of local-governments, their powers and their work. Such regulation is common also in other comparable legal systems. The regulatory framework relating to the organisation and work of municipal bodies should be the same in all municipalities, as far as this is necessary for ensuring equal standards of democracy and legal security on the local level as on the entire territory of the State. Regulating organisational aspects of local self-government, then, does not constitute an inadmissible interference with the guaranteed autonomy of local self-government unless it is unnecessary or disproportionate having regard to the aim to be achieved. The same also applies to the regulation of procedures for the enactment of general legal acts of a municipality. The legislator may regulate such procedures as well, however, only to the extent necessary for ensuring legal security and democratic decision-making in public matters of local importance, and such should not be disproportionate to the aim to be achieved.
Article 64.3 of the Local Self-Government Act provides that municipal statutes shall be enacted by the municipal council by a two-thirds majority of all members of the council. If statutes fail to be so, their enactment shall be decided on again not earlier than 30 days and not later than 60 days. The purpose of this last provision is, according to the Secretariat for Legislative and Legal Matters, to make possible in the case of disagreement between the members of a municipal council concerning the subject matter of the statute, "for all those taking part in its enactment to reconsider it thoroughly", and to provide "enough time for coordination of the views", and, on the other hand, also to ensure that the process of enacting the statute is not prolonged "indefinitely".
The constitutionally admissible aim of regulating the procedure for enactment of a municipal statute by law can only be based on the fact that the statute, as an act of fundamental importance for the municipality, should be based on greater support than other decisions. The law, in encouraging statutes to be adopted as a result of careful consideration by the members of the municipal council, is a means of ensuring consolidation of democracy and legal security on the local level. The provision on the two-thirds majority required to be able to enact statutes is from this viewpoint justified and sufficient. Provisions specifying time limits for repeating the decision-making concerning a proposal for the statute, however, unnecessarily interfere with the autonomy of the municipality in regulating its own affairs. There is no such reason as would follow from the described aim as would allow the legislator to prevent the municipality from enacting its statute within a shorter period of time if a sufficient majority in favour of such a decision has been reached in the municipal council. The provision on deadlines is also unnecessary from the viewpoint of achieving its aim. According to the Secretariat, the aim of the provision is said to be to prevent the process of enacting the statute from being prolonged "indefinitely". In the case of the first statute of a new municipality such a deadline could be justified by the need for timely enactment of the fundamental legal act, which is indispensable to the operation of the municipality. But, with a view to reaching this aim, the legislator has already provided in Article 99 of the Local Self-Government Act that statutes shall be enacted by the municipalities by 30 April 1995. Concerning changes to the statutes, however, this aim is no longer justified - for once a municipality has its own statute it may act on its basis, which is why it is from this viewpoint the same whether a proposal for changing the statute is accepted or not. For the same reason it is unnecessary to make municipalities within 60 days decide again on a proposal which has in the relevant procedure fallen to the ground. Furthermore, the legislator should not have hindered the municipal council from the subsequent coordination of the statute's proposal and from deciding upon it also after the expiry of the 60 day period.

Languages: Slovene, English (translation by the Court).

Identification: SLO-96-1-004
a) Slovenia / b) Constitutional Court / с) / d) 16.02.1996 / e) U-l-234/94 / f) / g) Official Gazette of the Republic of Slovenia, no. 14/96; to be published in Odiocbe in sklepi ustavnega sodisca (Official Digest of the Constitu-tional Court of RS), V, 1996 / h) Pravna Praksa (Legal Practice Journal), Ljubljana, Slovenia (abstract).

Keywords of the systematic thesaurus:
Institutions - Executive bodies - Territorial administrative decentralisation - Municipalities.

Keywords of the alphabetical index:
Local self-government / Municipalities, establishment / Municipality, number of inhabitants, lower limit.

Headnotes:
The Local Self-Government Act is not inconsistent with the Constitution if the legislator prescribes a lower limit to the number of inhabitants of a municipality, provided this limit is proportionate to a legitimate aim, that is the carrying out of public tasks of local significance and that it does not prevent the founding of municipalities in regions which correspond to the constitutional basis of a municipality.

Summary:
The Constitution prescribes in Article 139 that a municipality is a self-governing local community. The region of a municipality shall embrace a settlement or a number of settlements which are linked by the common needs and interests of the inhabitants. A municipality shall be founded after the prior holding of a referendum by which the will of the inhabitants in a specified area shall be established.
In the original text of Article 13 of the Local Self-Government Act it is prescribed that the region of a municipality shall be formed such that a municipality can fulfil the majority of 11 functions enumerated in the Article. The Local Self-Government Act did not prescribe conditions in relation to the number of inhabitants of a municipality. The Constitutional Court abrogated the provisions of Article 13, which had regulated the conditions for establishing a municipality, since it considered that because of unclear measures, municipal-ities in Slovenia could be formed on its basis which would not be in compliance with the Constitution (decisions nos. U-l-144/94 of 15 June 1994 - OdIUS III, 95).
The Local Self-Government Act was amended by the Act on Amendments and Supplements to the Local Self-Government Act, which took effect on 30 September 1994. The abrogated Article 13 was replaced with a new Article 13, which prescribed more precisely the conditions for establishing a municipality. The new Article 13 prescribes that a municipality must be capable of satisfying the needs and interests of its inhabitants and of fulfilling other functions in compliance with the statute. It shall be considered that a municipality is capable of fulfilling the mentioned functions if all the conditions enumerated in Article 13.2 of the Local Self-Government Act are satisfied. In addition to these conditions, the legislator prescribed in the new Article 13.a) a further condition in relation to the number of inhabitants: a municipality must have at least 5,000 inhabitants. For geographical, border-related, national, historical or economic reasons, a municipality may exceptionally also have less than 5,000 inhabitants.
In compliance with the principle that local self-government shall be guaranteed in Slovenia, the Constitution guarantees the existence of self-governing local communities. However, this does not mean that the legislator may not prescribe the criteria (conditions) and procedures for the establishment of municipalities. At the time of abrogating the original Article 13 of the Local Self-Government Act, the Constitutional Court even explicitly drew the attention of the legislator to the duty to prescribe unified criteria for the establishment of municipalities, and the cases and conditions for deviating from them, in order that there should be no functionally inappropriate municipalities. In its reasoning, the Constitutional Court also stressed that the number of inhabitants is also an important element of a local community. The number of inhabitants of a municipality must be such that it enables the performance of local self-government. A municipality with too few inhabitants cannot ensure the effective implementation of public tasks of local significance.
Accordingly, the Court was of the view that it was not inconsistent with the constitutional provisions on local self-government for the legislator to prescribe a lower limit to the number of inhabitants of a municipality, as long as this limit was found not to be disproportionate to the legitimate goal described in the previous paragraph, or unless this limit prevented the founding of municipalities in regions which corresponded to the constitutional scheme of a municipality. The challenged provision was not disproportionate to the legitimate goal, since the number of 5,000 inhabitants is not incomprehensibly high, and, in addition, Article 13.а of the Local Self-Government Act applies to those examples in which a municipality may also be founded in regions with a smaller number of inhabitants. The condition could not therefore be considered as being rigid, but as a condition which takes into the account the particularities of individual regions in which a municipality could be founded that would be capable of performing its functions even with a smaller number of inhabitants. Exceptions to the prescribed condition in relation to the number of inhabitants are thus allowable, and they enable the founding of a municipality even in a region with a smaller number of inhabitants.

Supplementary information:
In its reasoning, the Constitutional Court referred to its decisions nos. U-l-144/94 of 15/7-1994-OdIUS III, 95 and U-l-183/94 OdIUS III, 122).

Languages: Slovene, English (translation by the Court).

Identification: SLO-96-1-005
a) Slovenia / b) Constitutional Court / с) / d) 16.02.1996 / e) U-l-62/95 / f) / g) Official Gazette of the Republic of Slovenia, no. 14/96; to be published in Odioebe in sklepi ustavnega sod/sea (Official Digest of the Constitu-tional Court of RS), V, 1996 / h) Pravna Praksa (Legal Practice Journal), Ljubljana, Slovenia (abstract).

Keywords of the systematic thesaurus:
Institutions - Public finances - Taxation - Principles.
Fundamental rights - Civil and political rights - Non-retrospective effect of law - Taxation law.

Keywords of the alphabetical index:
Acquired rights / Income tax, assessment basis / Right to disposal of income.

Headnotes:
Determining tax obligations for income paid prior to a statute taking effect involved an encroachment on an existing acquired right to disposal of one's income, and was thus inconsistent with the Constitution.

Summary:
According to Article 4 of the Income Tax Act, the level of income tax and taxes deducted from income is established according to regulations which apply on 1 January of the year for which income tax is assessed, unless otherwise prescribed by the statute. Article 19 of the Act on Amendments and Supplements to the Income Tax Act prescribes that the amendments and supplements to the statute shall enter into force on the day following their promulgation (5 February 1995), and shall be effective as from 1 January 1995. In Article 17.2, the amending Act prescribes that income tax from the receipts additionally cited in Articles 15 and 16 of the Income Tax Act, on which the tax on personal income has not been assessed and paid from 1 January 1995 to 5 February 1995 shall be included in the basis for income tax for 1995.
In reality, this was a new tax burden or the removal of previously prescribed explicit tax reliefs. In case U-l-181/94 (OdIUS IV, 31) the Constitutional Court had already decided that under the provisions of Article 147 of the Constitution tax obligations may only be prescribed by a statute. The obligation can take effect only after the validation of a statute and its previous promulgation. The provision of retroactive tax obligations is inconsistent with Article 155 of the Constitution, since such tax obligations encroach on an existing acquired right to disposal of one's income.
Irrespective of the intention of the tax, in compliance with Article 154 of the Constitution tax obligations may only be prescribed with forward validity. The manner of assessing tax (e.g. annually) does not provide a basis for the interpretation whereby the validity of tax obligations is extended also to receipts paid in the period when such a tax obligation did not exist. So income paid in the period from 1 January 1995 to the taking effect of the amendments to the statute (5 February 1995) cannot be included in the basis for income tax for 1995 if the Act on Amendments and Supplements to the Income Tax Act, such as applied on 1 January 1995 did not define them as the income on which tax on personal income shall be paid, or if this statute even explicitly prescribed that the tax on personal income shall not be paid from this income.
By determining tax obligations retroactively (Article 17.2 of the Act on Amendments and Supplements to the Income Tax Act) the statute encroached on existing acquired rights of taxpayers to the disposal of specific income without payment of tax. From the reasons given for the amendments to the Income Tax Act, it is not possible to identify a public good which would require the retroactive validity of the statutory provision.
In view of the above, the Constitutional Court abrogated the provision of Article 17.2 of the Act on Amendments and Supplements to the Income Tax Act.

Supplementary information:
In its reasoning, the Constitutional Court referred to its decision no. U-l-181/94.
By resolution of the Constitutional Court of 14.09.1995, case no. U-l-138/95 was joined to the case being heard for common treatment and decision.

Languages: Slovene, English (translation by the Court).