>DOKUMENT : AN02275

>ZAUPNOST :

>REPUB : 5

>VRSTAD : 01

>DVLOG : 981123

>VRSTAV : 25

>VRSTAA : 03

>DODL : 010322

>VODL : 1

>VREŠ : 23

>JEZIK : 2

>DVHOD : 010404

>POD :

P18 Other

>ZADEVA :

U-I-416/98

>EVIDENCA :

E-14/01

>IMEVLAG :

Rajko Šajnovi_, Novo mesto

>AKT :

Local Self-Government Act (Official Gazette RS, Nos. 72/93, 57/94, 14/95, 26/97, 70/97, 74/98 and 70/00) (ZLS)

Charter of Novo Mesto Urban Municipality (Official Gazette RS, No. 47/99)

Act on the Establishment of Municipalities and the Determination of their Territorial Boundaries (Official Gazette RS, Nos. 60/94, 69/94, 56/98 and 75/98) (ZUODNO), Art. 3.8

>PROBLEM :

Romany community, special rights.

Nationalities, the Romany community.

Gap in the law.

Constitutional Court, the unconstitutionality of a gap in the law.

Constitutional Court, the determination of a time limit for the legislature to remedy an unconstitutionality (Art. 48 of ZUstS).

Elections, local elections (a Romany community representative).

Local self-government (the rights of the Romany community).

Constitutional Court, the principle of linking issues (Art. 30 of ZUstS).

Principle of equality before the law.

National minorities, protection, positive discrimination.

Elections, the voting right of the Romany community.

Nationalities, autochthonism.

Principle of a State governed by the rule of law.

Dissenting opinion of a Constitutional Court judge.

Concurring opinion of a Constitutional Court judge.

Legal basis:

Constitution, Arts. 14.1, 64, 65

Constitutional Court Act (ZUstS), Arts. 6, 48

>PORPRED :

>SKLEPI :

>IZREK :

The Local Self-Government Act (Official Gazette RS, Nos. 72/93, 57/94, 14/95, 26/97, 70/97, 74/98 and 70/00) is inconsistent with the Constitution for the reasons determined in the reasoning of this decision.

The Charter of Novo Mesto Urban Municipality (Official Gazette RS, No. 47/99) is inconsistent with the Local Self-Government Act since it does not determine that the Romany community, which has been an autochthonously settled community on the territory of Novo Mesto Urban Municipality, has a representative on the municipal council.

The proceedings for the review of the constitutionality of Art. 3.8 of the Act on the Establishment of Municipalities and the Determination of their Territorial Boundaries (Official Gazette RS, Nos. 60/94, 69/94, 56/98 and 75/98) are dismissed in the part relating to the number of members on the first Municipal Council of Novo Mesto Urban Municipality.

The National Assembly must remedy the unconstitutionality established in Indent 1 of the disposition within a time limit of one year from the publication of this decision in the Official Gazette of the Republic of Slovenia.

Novo Mesto Urban Municipality must remedy the illegality established in Indent 2 of the disposition within six months from the publication of this decision in the Official Gazette of the Republic of Slovenia.

>TEKST :

The duty of the legislature was not only to determine the special rights of the Romany community, but also to regulate their exercise in a manner which would ensure the Romany community living in Slovenia the actual exercise of such special rights. Since the provision of Art. 39.5 of the Local Self-Government Act (hereinafter ZLS) is incomplete (a gap in the law), the Constitutional Court established that the Act is inconsistent with the Constitution (Indent 1 of the disposition).

Giving consideration to the fact that the autochthonous character of the Romany community on the territory of Novo Mesto Urban Municipality is established beyond doubt, the Constitutional Court holds that Novo Mesto Urban Municipality could have implemented its statutory obligation determined in Art. 39.5 of ZLS already on the basis of the present regulation and made it possible for the Romany community to elect a representative to the municipal council in the Fall 1998 local elections. For the mentioned reason, the Constitutional Court established that the challenged charter is inconsistent with ZLS since it does not determine that the Romany community, as an autochthonous community settled on the territory of Novo Mesto Urban Municipality, has the right to a representative on the municipal council (Indent 2 of the disposition).

>OBJAVA :

Official Gazette RS, No. 28/01

>POSLANO :

>OPOMBA :

In the reasoning of its decision, the Constitutional Court refers to its cases No. U-I-283/94 dated 12 February 1998, Official Gazette RS, No. 20/98 - DecCC VII, 26, and No. U-I-298/96 dated 11 January 1999, Official Gazette RS, No. 98/99 - DecCC VIII, 246.

FULL TEXT :

U-I-416/98-38

22 March 2001

D E C I S I O N

At a session held on 22 March 2001, following a public hearing held on 29 September 1999, in proceedings to review constitutionality and legality commenced upon the petition of Rajko Šajnovi_ of Novo mesto, the Constitutional Court

decided as follows:

1. The Local Self-Government Act (Official Gazette RS, Nos. 72/93, 57/94, 14/95, 26/97, 70/97, 74/98 and 70/00) is inconsistent with the Constitution for the reasons determined in the reasoning of this decision.

2. The Charter of Novo Mesto Urban Municipality (Official Gazette RS, No. 47/99) is inconsistent with the Local Self-Government Act since it does not determine that the Romany community, which has been an autochthonously settled community on the territory of Novo Mesto Urban Municipality, has a representative on the municipal council.

3. The proceedings for the review of the constitutionality of Art. 3.8 of the Act on the Establishment of Municipalities and the Determination of their Territorial Boundaries (Official Gazette RS, Nos. 60/94, 69/94, 56/98 and 75/98) are dismissed in the part relating to the number of members on the first municipal council of Novo Mesto Urban Municipality.

4. The National Assembly must remedy the unconstitutionality established in Indent 1 of the disposition within a time limit of one year from the publication of this decision in the Official Gazette of the Republic of Slovenia.

5. Novo Mesto Urban Municipality must remedy the illegality established in Indent 2 of the disposition within six months from the publication of this decision in the Official Gazette of the Republic of Slovenia.

R e a s o n i n g

1. The petitioner asserted that he could not run for [the office of] Romany community representative on the Municipal Council of Novo Mesto Urban Municipality in the 1998 local elections. He emphasized that he has long been an activist for the rights of the Roma and a member of the ROM Intermunicipal Society, Novo mesto. He asserted that the Charter of Novo Mesto Urban Municipality, which does not determine that also representatives of the Roma are entitled to the right to elect a representative to the municipal council, is contrary to the Constitution and Art. 39 of the Local Self-Government Act (hereinafter ZLS). He enclosed with the petition documents which show that he had intended to run for municipal councillor and that, in the framework of the ROM Intermunicipal Society, he had sent to the Municipal Council of Novo Mesto Urban Municipality a letter dated 13 November 1998, in which he emphasized that the municipal council would remain without a Rom representative also in the local elections of "this year". Simultaneously, he called on the municipal council to amend its charter and determine that also a Rom representative be elected to the municipal council. He enclosed with the petition the reply of the Mayor of Novo Mesto Urban Municipality, dated 19 November 1998, in which the latter explained to the ROM Intermunicipal Society that the prepared draft amendment of the charter, on the basis of which one municipal councillor would be elected by Romany community members, was not placed on the agenda of a session of the municipal council since it did not have a quorum. However, the Mayor emphasized that Roma representatives could have their representative on the municipal council, although this is not envisaged in the charter, if they organize themselves and run their own list of candidates for the position of councillor in the local elections.

2. In his reply to the petition, the Mayor of Novo Mesto Urban Municipality emphasized that Romany community members, as citizens of Novo Mesto Urban Municipality, may participate in local elections. In spite of the efforts made by Novo Mesto Urban Municipality and its Mayor, the Romany community members did not succeed in their political organization to field a candidate in the local elections (as a political party, list of candidates or society). As far as the representation of the Romany community on the municipal council is concerned, he emphasized that amendments to the charter had already been prepared, however the municipal council establish that the Romany community on the territory of Novo Mesto Urban Municipality was not an autochthonous community, which should be ensured one representative in the municipal council, pursuant to Art. 39.5 of ZLS. Furthermore, he pointed to the indefiniteness of the concept "autochthonous" and opened various questions in connection with the representation of the Romany community in the municipal representative body. These questions were, for example, what should the number be of Romany community members so that the community could be considered an autochthonous community and in what relation should this number be to the overall number of inhabitants of a particular municipality, and whether a Romany community member who declared themselves to be a member of the Slovenian nation in a population count may be entitled to vote for a Romany community representative. It allegedly followed also from the Act on the Establishment of Municipalities and the Determination of their Territories (hereinafter ZUODNO), which, as regards the number of the first municipal council, had not determined that one council member must be a Romany community member, as in the case of the Municipal Council of Murska Sobota Urban Municipality, and that the Romany community is not an autochthonous community within Novo Mesto Urban Municipality. He argued that, for the mentioned reasons, the challenged charter was not inconsistent with the Constitution and ZLS.

3. The National Assembly Secretariat for Legislation and Legal Affairs opined that in determining the number of members on the first municipal councils of newly established municipalities, as regards the participation of the Hungarian and Italian national communities as well as the Romany community, ZUODNO only continued the actual practice existing in the previous municipalities. It furthermore opined that it was the power of the municipality itself to subsequently determine the number of municipal council members and thereby ensure the exercising of the right of the Romany community determined in Art. 39.5 of ZLS. It emphasized that the legislature acted reasonably by not determining in advance in ZLS the criteria on the basis of which municipalities would be forced to ensure the presence of one Romany community representative on municipal councils. Thereby the actual implementation of this right was left to local communities. The mere fact that certain local communities have not implemented this right of Romany communities did not allegedly contribute to the unconstitutionality of the statute. The Secretariat asserted that the regulation of the Romany community rights determined by the Constitution and statute is a hard legal question. In order to resolve this question, efforts need to be allegedly made by Romany communities themselves to exercise in appropriate areas their rights determined by the Constitution and statute.

4. In the framework of the proceedings examining the petition, the Constitutional Court obtained an explanation and data from the Office for Nationalities of the Government of the Republic of Slovenia and the Institute for Nationality Questions. The Office for Nationalities emphasized that already at the time of adopting ZLS questions were raised about the practical implementation of Art. 39.5 since the areas in which Roma live autochthonously have not been especially determined, and no additional criteria have been formulated for their participation in local self-government. The Office established that municipalities did not implement in their charters the statutory provision on the participation of Roma in municipal councils although the Government Commission for Roma Questions had suggested that they supplement their charters with provisions on Roma participation, prior to the 1998 local elections. As a reason for disregarding the statutory obligation, the municipalities had allegedly stated that it was not clear in which areas Roma were autochthonous inhabitants, and that the Act did not determine additional conditions which these municipalities should fulfil for the implementation of their obligation. Furthermore, the Office opined that the Roma who live in Dolenjska, Bela Krajina and Prekmurje are autochthonous inhabitants, which is allegedly supported by numerous sources (e.g. Dr. Pavle Štrukelj's study: The Roma in Slovenia). The Office believed that the Roma living in Novo Mesto Urban Municipality are undoubtedly an autochthonous group of inhabitants, since their presence there is supported by numerous documents and their organization and activities fully justify their request for participation in deciding on the regulation of public affairs in the municipality to be ensured by statute. The Institute for Nationality Questions opined that the Constitution and statutes undoubtedly determine the obligation that the status of autochthonous Romany communities in Slovenia be appropriately regulated and protected. The considered petition allegedly correctly emphasized the inappropriate regulation of this question in the Charter of Novo Mesto Urban Municipality. In the Institute's opinion, it is hard to establish the number of autochthonous Roma who have traditionally lived in particular in Dolenjska and Prekmurje. According to the statistical data, 2,293 Roma lived in Slovenia in 1991, while estimations of their actual number range from two to eight thousand. It opined that the protection of autochthonous Roma should be regulated in a manner similar to the regulation of the autochthonous Italian and Hungarian national communities. The problems raised by the mentioned petition could be allegedly avoided if the statute explicitly determined in which municipalities a Romany community representative should be elected to the municipal council, as already regulated in Murska Sobota Urban Municipality.

B. - I.

5. By Order No. U-I-416/98, dated 8 April 1999, the Constitutional Court accepted the petition for the commencement of proceedings for the review of the constitutionality and legality of the Charter of Novo Mesto Urban Municipality. On the basis of Art. 30 of the Constitutional Court Act (Official Gazette RS, No. 15/94 - hereinafter ZUstS), it commenced proceedings for the review of the constitutionality of ZLS and Art. 3.8 of ZUODNO in the part determining the number of the members on the first municipal council of Novo Mesto Urban Municipality.

6. On 29 September 1999 the Constitutional Court held a public hearing. The representative of Novo Mesto Urban Municipality explained that the Commission for the Charter and the Rules of Procedure of the Municipal Council determined that the Romany community on the territory of Novo Mesto Urban Municipality could not elect its own representative to the municipal council, since the criteria for autochthonism are not defined in statute. The National Assembly representative stated that at the 17th regular session, dated 16 June 1999, the National Assembly Commission for Local Self-Government fully supported the opinion of the National Assembly Secretariat for Legislation and Legal Affairs concerning the mentioned petition. Thus, the Commission concluded that the Government should achieve, by means of control and expert assistance, the implementation of the special rights of Romany communities in the areas in which these communities have autochthonously lived. The representative of the Office for Nationalities pointed out that in practice the idea has emerged that the special protection of the Romany community cannot be regulated in one (global) statute, but that the practice established for the protection of the Italian and Hungarian national communities should be followed and regulate Roma rights in several statutes. The ZLS provision which grants to the Romany community the right to participate in municipal councils is allegedly analogous to the provisions relating to the national communities, however with the difference that the areas in which the national communities live are determined by statute, whereas the areas in which the Romany community lives are not determined by statute. He opined that the criterion of the autochthonism of the Romany community on the territory of Novo Mesto Urban Municipality is clearly proved by numerous historical data and entries into the registers of births, marriages and deaths. He emphasized that various states have developed certain criteria of autochthonism (a period of three generations or one hundred years), although this criterion does not appear in international documents as a mandatory condition for recognizing a national or ethnic minority. Furthermore, he opined that the number of Roma on the territory of Novo Mesto Urban Municipality and their organization justify their right to participate in the representative body, and that there exist all necessary reasons for implementing Art. 39.5 of ZLS. The representative of the Institute for Nationality Questions pointed out that, from an expert point of view, there is no doubt that the Romany community has been autochthonously settled on the territory of Novo Mesto Urban Municipality and that the question of autochthonism will be raised also in other municipalities. He opined that the Roma living on the territory of Novo Mesto Urban Municipality are well enough organized in order to be able to exercise the right vested in them by statute. The representative of the Society of Romany Communities of Slovenia believed that, in view of the opinions of numerous experts, the criterion of the autochthonism of the Romany community in the Dolenjska region cannot be disputed. He opined that it is necessary for the Romany community to be ensured the opportunity to make decisions on resolving its own problems in all municipalities in which Roma live. He recommended that the Constitutional Court grant the request of the Romany community of Novo mesto.

B. - II.

7. On the constitutional level, Roma1 were first mentioned in the LXVII constitutional amendment to the Constitution of the Socialist Republic of Slovenia (Official Gazette SRS, No. 32/89). This determined among other competencies of the Assembly of the Socialist Republic of Slovenia that "also the manner of the exercise of special Roma rights" is regulated by statute. The [present] Constitution determined the guarantee of the special rights of the Romany community in the chapter on human rights and fundamental freedoms. Art. 65 of the same determines that the status and special rights of the Romany community living in Slovenia shall be regulated by law. The Constitution, in comparison with the constitutional regulation of the status and special rights of the Italian and Hungarian national communities (Art. 64 of the Constitution), does not determine collective and individual rights which should pertain to the Romany community and its members, but entirely leaves their regulation to statute. The mentioned constitutional provision entails the authority granted to the legislature to ensure by statute special rights to the Romany community living in Slovenia, as a special ethnic community, in addition to those rights pertaining to everybody. In regulating the special status and special rights of the Romany community, the legislature is not limited by the principle of equality which, concerning the regulation of human rights and fundamental freedoms, prohibits any discrimination based on nationality, race or other circumstances determined in Art. 14.1 of the Constitution. The constitutional authority determined in Art. 65 allows the legislature to ensure the Romany community and its members special (additional) protection, which is in theory known as so-called "positive discrimination" or affirmative action2 (Constitutional Court Decisions No. U-I-283/94, dated 12 February 1998, Official Gazette RS, No. 20/98 and DecCC VII, 26 98/99 and DecCC VIII, 246). Affirmative action which a majority nation takes concerning national, ethnic, language and other communities (minorities), reflects the willingness of the State to foster and realize the mentioned communities rights as a composite part of the democratic development of the whole society (State). This is specifically emphasized by the Declaration on the Rights of Members of National or Ethnic, Religious and Language Minorities adopted by the United Nations General Assembly in 1992 as a formally non-binding document. Art. 1 of the Declaration determines that States shall protect the existence and national, ethnic, cultural, religious and language identity of minorities within their territories and encourage circumstances to support such identity. Art. 2.3 determines that the members of minorities have the right to efficiently participate at the State level and - where applicable - at the regional level in decisions relating to the minority they belong to or the regions in which they live, in a manner which is not incompatible with State legislation. In Art. 8.3 of the Declaration it is especially determined that State measures for ensuring the effective enjoyment of the rights determined in this Declaration must not prima facie be considered contrary to the principle of equality determined in the Universal Declaration of Human Rights.3 Also, it can be found in other international instruments that Roma are mentioned as an especially endangered ethnic community which, for reason of their peculiarities, require special protection. The Organization for European Protection and Cooperation (hereinafter OSCE), in Art. 40 of the Final Document of the 1990 Copenhagen Conference pointed out the special problems of Roma in connection with fighting against totalitarianism, racial and ethnic hatred, anti-Semitism, xenophobia and discrimination.4 The Council of Europe approach to the Roma as a whole is encompassed in the recommendation of the Parliamentary Assembly of the Council of Europe, entitled "Roma in Europe" (February 1993), which explained that also Roma contribute to the cultural variety of Europe and inter alia emphasized the reasons which have led to the deplorable situation in which a majority of the Roma live today.5 In 1993 the permanent conference of local and regional communities of the Council of Europe called, in Resolution No. 248, for local and regional bodies to take necessary measures as part of a general strategy to alleviate the integration of Roma into local communities. Local and regional bodies should encourage Roma to participate in projects on fostering their integration.6

In the framework of the Council of Europe, what is also legally important in connection with the status of Roma is the Framework Convention for the Protection of National Minorities (Official Gazette RS, No. 20/98, IT, No. 4/98), concerning the fact that it does not explicitly include the definition of a national minority and that Roma are in certain European States recognized the internal status of a national minority (Austria, Hungary, the Czech Republic and Slovakia).7 On the occasion of depositing the ratification documents regarding the Framework Convention for the Protection of National Minorities with the Council of Europe, the Republic of Slovenia deposited, in the form of a Note Verbale, a Declaration which inter alia determines that the "provisions of the mentioned Framework Convention apply in accordance with the Constitution and the internal legislation of the Republic of Slovenia also to the members of the Roma community living in the Republic of Slovenia.8

8. As already mentioned, on the basis of the Constitution, Roma do not have the status of a national community but a special status regulated in Art. 65 of the Constitution. According to Art. 64 of the Constitution, both the Italian and Hungarian minority national communities enjoy constitutional-level rights in the areas in which they have autochthonously lived. In spite of the lack of a uniform definition, theory considers a national minority a community which has been "from ancient times" settled on a certain territory and separated from its majority nation because of changed State boundaries. In comparison with national minorities, Roma do not have a homeland but are scattered all over the European States, as descendants of the nomads who had come to Europe from India prior to the 14th century.9

9. One of the first special rights of the Romany community, provided on the basis of the authority determined in Art. 65 of the Constitution, is the right of the Romany community to be represented in local self-government representative bodies.10 Art. 39.5 of ZLS determines: "In the areas in which an atochthonously settled Romany community lives the Roma shall have at least one representative on the municipal council." This special right ensures the Romany community a special representative on the municipal councils of those municipalities in which a Romany community autochthonously lives. It also ensures Romany community members a special voting right in addition to the general voting right they are entitled to as Slovenian citizens. The special (active and passive) voting right of the Romany community members and its exercise at local elections is regulated by ZLV in more detail.11

10. Only the Romany community living on the territory of Murska Sobota Urban Municipality has so far exercised the right to its own representative in the representative body of a local community (the Charter of Murska Sobota Urban Municipality, Official Gazette RS, No. 23/99).12 The second municipality which has defined in its charter that an autochthonously settled Romany community lives on its territory is Rogašovci Municipality, which on 28 June 1999 adopted a new charter (Official Gazette RS, No. 66/99). By this charter it made it possible, on its territory, for the Romany community to elect a representative to the municipal council in subsequent elections. Although it follows from the scientific research and expert opinions expressed at the public hearing that Romany communities have for a longer period of time lived also on the territories of other municipalities,13 they have not yet exercised this right to have a representative on the municipal council.

11. Municipalities were established as local self-governing communities by ZUODNO, which determined, in addition to the name and seat of newly established municipalities, also the number of members on the first municipal councils. ZLS is a systematic statute in the area of local self-government, which regulates only the principles for the regulation of local self-governing communities, and leaves more detailed regulation of the operation of individual municipalities to their charters (Arts. 1 and 64 of ZLS). One of these principles is also contained in Art. 39.5 of ZLS. This provision creates the obligation of the municipalities on whose territory a Romany community lives to ensure this community at least one representative on the municipal council. As a criterion for the creation of this obligation, Art. 39.5 requires only that the Romany community has been autochthonously settled on the territory of that municipality. ZLS does not define the concept of "autochthonous settlement". This concept is also not defined in any other legal act. The word "autochthonous" means "one who is, by his or her origin, from the place where he or she lives; domestic, aboriginal,"14 and is also used in connection with the definition of the Italian and Hungarian national communities (Art. 64 of the Constitution). As the representatives of the Office for Nationalities and the Institute for Nationality Questions emphasized at the public hearing, the criteria of autochthonous settlement are not uniformly defined and this question is differently regulated by individual States, in so far as they determine autochthonous settlement at all as a criterion for recognizing the special status of a national, ethnic, language or other community.15 ZLS also does not contain any criteria set in advance on the basis of which municipalities could easily establish the existence of an autochthonous Romany community, and also other criteria (e.g. organization, the number of members) necessary for exercising this special statutory right within a municipality. ZLS also did not determine a time limit in which municipalities must implement the mentioned statutory provision, or the time-period within which the municipalities must reach a decision in connection with exercising the mentioned statutory provision.

12. An incomplete statutory regulation violates the principles of a State governed by the rule of law as determined in Art. 2 of the Constitution, which requires that legal norms be clear and defined, to a sufficient extent so that they can be implemented in conformity with their contents and purpose by those addressed by them. If a legal norm is not clearly defined there is a possibility of the different application of the statute and arbitrary acts by the bodies which implement it. Novo Mesto Urban Municipality justifies the unfulfillment of the obligations determined in Art. 39.5 of ZLS in particular by the arguments of insufficient statutory regulation. The duty of the legislature was not only to determine the special right of the Romany community but also to regulate its exercise in a manner guaranteeing the Romany community living in Slovenia the actual exercise of this special right. Since the provision of Art. 39.5 of ZLS is incomplete (a gap in the law), the Constitutional Court established that ZLS is inconsistent with the Constitution (Indent 1 of the disposition). The legislature will have to determine in more detail the criteria on the basis of which municipalities could establish whether an autochthonously settled Romany community lives on their territory. It will also have to consider whether any other criteria should be prescribed for the exercise of the Romany community's special right to a municipal council representative (e.g. organization, the number of members).16 First of all, it will have to determine a time limit in which municipalities should fulfill their statutory obligation. The non-determination of the time limit in which municipalities should have fulfilled their statutory obligation was undoubtedly one of the reasons why the municipalities on whose territory the Romany community lives did not enable the same to exercise its statutory right already in the 1998 local elections.

13. The Constitutional Court accepted the petition for the review of the constitutionality and legality of the Charter of Novo Mesto Urban Municipality. In the proceedings the question was raised whether the challenged charter can be at all inconsistent with ZLS, concerning the established unconstitutionality of Art. 39.5 (Indent 1 of the disposition). It was established in the proceedings that Novo Mesto Urban Municipality did not make possible in its charter the realization of the right to the election of a representative of the Romany community living on its territory, in particular because there was no agreement reached on whether any autochthonously settled Romany community lived on its territory. From the materials cited in this decision and the expert opinions given within the proceedings examining the petition and at the public hearing, it undoubtedly follows that an autochthonously settled Romany community lives on the territory of Novo Mesto Urban Municipality. All the mentioned expert sources state that in certain areas of Prekmurje, Dolenjska, Posavje, Bela krajina and, partially, in Gorenjska, Roma have lived for centuries. Thus, from the Government Information on the Status of Roma in the Republic of Slovenia, it follows that in 1994, 833 Romany community members lived on the territory of the then Novo Mesto Municipality.17 It follows from the mentioned Information and the Report on the Implementation of the Program of Measures for Helping Roma in the Republic of Slovenia in 1997 and 1998 (discussed at the Government session dated 1 July 1999) that there are numerous activities established for solving the Roma's problems, in particular in social, educational as well as employment areas, in which local communities are actively taking part; among others, also Novo Mesto Urban Municipality. Considering that the autochthonous character of the Romany community on the territory of Novo Mesto Urban Municipality has been undoubtedly established, the Constitutional Court holds that Novo Mesto Urban Municipality could have already on the basis of the present regulation implemented its statutory obligation determined in Art. 39.5 of ZLS and made possible the election of a Romany community representative to the municipal council in the Fall 1998 local elections. For the stated reason, the Constitutional Court found the challenged charter to be inconsistent with ZLS since it does not determine that the Romany community which is autochthonously settled on the territory of Novo Mesto Urban Municipality has a representative on the municipal council (Indent 2 of the disposition).

14. The Constitutional Court commenced as an official duty proceedings for the review of the constitutionality of Art. 3.8 of ZOUDNO, since it was impossible to find in this Act the reasons which justified the determination of the representation of the Romany community only in the first Municipal Council of Murska Sobota Urban Municipality and not also in the councils of other municipalities, first of all in the Municipal Council of Novo Mesto Urban Municipality. The Constitutional Court established in the preparatory proceedings and the proceedings of consideration that on the establishment of Murska Sobota Urban Municipality the legislature had only followed the charter of the previous Murska Sobota Municipality and determined also a Romany community representative should be a municipal council member. In the 1998 amendment to ZUODNO (Official Gazette RS, Nos. 56/98 and 75/98 corr.) the text on the representation of the Romany community in the Murska Sobota Urban Municipality Municipal Council was omitted. Therefore, ZUODNO no longer contains the provisions on the representation of the Romany community in municipal councils. Art. 5 of this Act determines only those municipalities on whose territory the right to a representative on the municipal council pertains to the Hungarian and Italian national communities. However, ZUODNO is, first of all, an implementing act by which municipalities are established and the number of the members on the first municipal councils determined, so that the representative body of a new municipality can be constituted. ZUODNO is not an act which, following the subject of its regulation, should systematically determine in which municipalities the Romany community exercises its special rights. Thus, the Constitutional Court established that the reasons which had required the commencement of proceedings on the basis of Art. 30 of ZUstS no longer existed. It therefore dismissed the proceedings for the review of ZUODNO (Indent 3 of the disposition).

15. The Constitutional Court determined a time limit of one year for remedying the established unconstitutionality in Indent 1 of the disposition. In this it considered that the legislature would need to regulate a completely new question and that the matter concerns a regulation which requires a special expert approach and the participation of the Romany community. The Constitutional Court emphasizes that the establishment of the unconstitutionality of ZLS does not mean that the legislature may not regulate this question in some other statute. The Constitutional Court determined a time limit of six months for making the Charter of Novo Mesto Urban Municipality conform with ZLS. This time limit fully suffices for amending the Charter and enables the Romany community to prepare itself for the election of a representative to the Novo Mesto Urban Municipality Municipal Council in the next local elections.

16. The Constitutional Court reached this decision on the basis of Arts. 6 and 48 of ZUstS, composed of: Franc Testen, President, and Judges: Dr. Janez _ebulj, Dr. Zvonko Fišer, Lojze Janko, Milojka Modrijan, Dr. Mirjam Škrk, Dr. Lojze Ude and Dr. Dragica Wedam Luki_. Indents 1, 3 and 4 of the disposition were reached unanimously. Indents 2 and 5 of the disposition were reached by seven votes against one. Judge _ebulj voted against and wrote a dissenting opinion. Judge Testen wrote a concurring opinion.

Notes:

1In 1979 the World Congress of Gypsies decided to use the general ethnic name "Roma" or a "Rom" for an individual. After that this name was also accepted by international organizations and some European States (The Ways for Improving the Situation of Roma in Central and Eastern Europe, Challenges for Minority Law, The Collection of Papers From the Expert Conference in Murska Sobota, 11 and 12 April 1997, p. 143).

2In newer doctrine and practice, in particular American, the concept of affirmative action has been established.

3Human Rights, A Collection of International Documents Part I, Universal Documents, Ljubljana 1995, p. 113.

4The Ways for Improving the Situation of Roma in Central and Eastern Europe, A Challenge for Minority Law, op. cit., pp. 47-48.

5Information on the situation of Roma in the Republic of Slovenia, National Assembly Reporter, No. 18/95, EPA 1102, p. 56.

6Ibidem, p. 56.

7Ibidem, pp. 65-69.

8The Declaration, dated 28 March 1998, Council of Europe ETS/STE No. 157. On the promulgation of the Act on Ratification of the Framework Convention, the Declaration was not published in the Official Gazette of the Republic of Slovenia.

9The Information on the Status of Roma in the Republic of Slovenia, op. cit., p. 55.

10The members of the Romany community are recognized a special position also by statutes in the area of education and training (the Organization and Financing of Education and Training Act (Official Gazette RS, No. 12/96 and the following - ZOFVI), the Kindergartens Act (Official Gazette RS, No. 12/96 and the following. - ZVrt), the Primary School Act (Official Gazette RS, No. 12/96 and the following. - ZOsn).

11The ZLV provisions which regulate the election of a Romany community representative are Arts. 7, 8.3, 10.2, 23, 33.3, 36 and 49.2.

12Art. 1.3 of the Charter of Murska Sobota Urban Municipality establishes that "in Murska Sobota Urban Municipality there lives an autochthonously settled Romany community." In Para. 4 of the same article, it determines that the position and rights of the Romany community members are determined in conformity with statute.

13The Roma in Slovenia, Treaties and Materials 25, the Institute for Nationality Questions, Ljubljana, September 1991.

The Ways for Improving the situation of Roma in Central and Eastern Europe, op. cit.

14Slovar slovenskega knji_nega jezika (The Dictionary of the Slovene Literary Language), DZS, Ljubljana (1994), p. 28.

15In the 1993 LXXVII Minority Act Hungary determined that a community can be recognized as a national minority if it has been present in Hungary for at least one hundred years, if its members are Hungarian citizens and have a special language, culture and tradition. Roma are the largest ethnic community in Hungary with 4% of the total population (according to the East European Constitutional Review, Winter 1998, p. 16). In Austria, which recognized the Roma as a national community in the sense of the 1993 National Communities Act, the members of a national community must be Austrian citizens and should have lived in the State as citizens for decades (25 to 90 years). According to the collection of papers The Ways for Improving the Situation of Roma, op. cit., p. 66.

The Partially Dissenting Opinion of Judge Dr. Janez _ebulj

1. In this case I voted against the part of the disposition of the decision (and, certainly, also against the part of the reasoning), which establishes that the Charter of Novo Mesto Urban Municipality (hereinafter the Charter) is inconsistent with the Local Self-Government Act (hereinafter ZLS), since it does not determine that the Romany community autochthonous settled on the territory of Novo Mesto Urban Municipality has a representative on the municipal council, and imposes on the Urban Municipality the duty to remedy this illegality within a time limit of six months. I agree with the finding of the inconsistency of the Charter with ZLS (Items 1 and 4 of the disposition), although I would leave more free room for the National Assembly to remedy the inconsistency than follows from the reasoning of this part of the decision.

2. I also have a problem with the internal contradiction between the individual items of the disposition and, thereby, with the individual items of the reasoning. Judge Testen, who voted in favor of such decision, thus explained in his concurring opinion1 why he nevertheless supported the decision. However, the internal contradiction of the decision was not really the main reason why I did not agree with it in the part relating to the Charter. More than with the internal contradiction itself, I had a problem with the negative consequences the decision will entail on normative regulation and the actual exercising of the special voting right of the Romany community members in Slovenia. In my opinion, due to these consequences (although I would be very happy to see that I am wrong), the present regulation of the representation of the Romany community in the Municipal Council of Novo Mesto Urban Municipality, following from the decision, will not only become less effective in that area, but will have more detrimental than beneficial results for the Romany community living in Slovenia. What do I have in mind?

3. Not only Novo Mesto Urban Municipality, but also other municipalities on whose territory Romany community members have lived stated as a reason for disrespecting the obligations determined in Art. 39.5 of ZLS not only that there were no statutory criteria for the determination of autochthonism, but that the statute did not determine additional conditions which should have been regulated so that the municipalities could fulfill their obligation.

4. Art. 39.5 of ZLS provides that: "In the areas in which an autochthonously settled Romany community lives, the Roma shall have at least one representative on the municipal council." This provision enacted the right of the Roma to have a representative on the municipal council as a special right on the basis of Art. 65 of the Constitution. This determines: "The status and special rights of the Romany community living in Slovenia shall be regulated by law." The part of the ZLS provision ("... in which there lives an autochthonous settled Romany community ...") and the part of Art. 65 of the Constitution ("... the Romany community living in Slovenia ...") could be inconsistent. However, the Constitutional Court considered the criterion of autochthonism as a fact. It wrote inter alia in Item 11 of the reasoning: " ... ZLS does not define the concept of autochthonism, as it is not legally defined in any other legal regulation. The word "autochthonous" means "such person who is, by origin, from where he or she lives; domestic, aboriginal,2 and is used also in the context of defining the Italian and Hungarian national communities (Art. 64 of the Constitution). As the representatives of the Office for Nationalities and the Institute for Nationality Questions emphasized at the public hearing, autochthonism criteria are not uniformly defined and individual States regulate this question differently, insofar as they determine autochthonism at all as a criterion for the recognition of the special status of a national, ethnic, language or any other community.3 ZLS also does not contain any criteria set in advance, on whose basis municipalities would more easily establish the existence of an autochthonous Romany community and other possible criteria (e.g. organization, the number of members) necessary for exercising this special statutory right in the municipality."

5. In the continuation (Item 12 of the reasoning) the Constitutional Court concluded that: "Incomplete statutory regulation violates the principles of a State governed by the rule of law as determined in Art. 2 of the Constitution, ... The legislature will have to determine in more detail the criteria on the basis of which municipalities establish whether an autochthonous settled Romany community lives on their territory. It will also have to assess whether for exercising the special right of the Romany community to a representative on the municipal council any other criteria need to be prescribed (e.g. organization, the number of members)..." Furthermore, the Court ruled (Item 13 of the reasoning) that: "... All the mentioned expert sources maintain that in certain areas of Prekmurje, Dolenjska, Posavje, Bela krajina and, partially, in Gorenjska, Roma have lived for centuries ... Giving consideration to the fact that the autochthonous character of the Romany community on the territory of Novo Mesto Urban Municipality was undoubtedly established, the Constitutional Court holds that Novo Mesto Urban Municipality could have implemented its statutory obligation as determined in Art. 39.5 of ZLS already on the basis of the present regulation and made it possible for the Romany community to elect a representative to the municipal council in the 1998 Fall local elections. From the stated reason, the Constitutional Court established that the challenged Charter was inconsistent with ZLS, since it did not determine that the Romany community autochthonous settled on the territory of Novo Mesto Urban Municipality had a representative on the municipal council."

6. What does follow, in my opinion, from the cited assertions included in the Constitutional Court decision? First, that the Constitutional Court adopted the criterion of autochthonism enacted by ZLS in Art. 39.5 although Art. 65 of the Constitution deals with the status and special rights of the Romany community and not with the autochthonous character of the Romany community, as in the case of Art. 64 of the Constitution, which refers to the autochthonous Italian and Hungarian national communities in Slovenia and their special rights (in the case of minorities, autochthonism is the constitutional category). It adopted it although it can still become a subject of constitutional review. Moreover, it even imposed on the legislature the duty to prescribe the criteria on the basis of which municipalities will be able to establish the existence of the autochthonous character of the Romany community on their territory. In such a manner it deprived the legislature of the possibility of omitting autochthonism when regulating the status and rights of the Romany community. My position is strengthened even more by the fact that the Constitutional Court established the inconsistency of the Charter with ZLS in particular as regards this autochthonism criterion, for that the autochthonism of the Romany community on the territory of Novo Mesto Urban Municipality is undoubtedly established and there are no reasons why not to enable the Romany community to elect a representative to the municipal council.

7. If I leave aside the question of why only one municipal council representative, I cannot refrain from raising the question why not also such representative in other municipalities. As well as in the case of Novo Mesto Urban Municipality, it has been established for Posavje, Bela krajina and, partially, Gorenjska: also there Roma have lived for centuries. Thus, there is no reason for not having Roma representatives on municipal councils also in the municipalities established on these territories. And why then are criteria and possible additional criteria (e.g. organization, the number of members) needed, which should be, following the "order" of the Constitutional Court, adopted by the legislature to remedy the inconsistency of ZLS with the Constitution?

8. Truly - why? Given such and the only criterion for establishing the inconsistency of the Charter with ZLS, subsequent statutory regulation (except as regards the number of Roma representatives in the individual municipal council) is completely superfluous. In any case I voted in favor of the part of the disposition which establishes the inconsistency of ZLS with the Constitution in particular for the reason of not regulating that which -- also in my opinion even if I voted in favor of the inconsistency of the Charter -- is not needed to be regulated for exercising the rights of Roma to a representative on the municipal council. Since it follows from Art. 65 of the Constitution that the constitution-Framers defined the regulation of the status and special rights of the Romany community as a task within the State jurisdiction or a task of the legislature. This means that it depends on the legislature whether it will apply autochthonism at all as a criterion (if this can be a criterion). It is also up to it to decide which other criteria it will perhaps prescribe (organization, the number of members, etc.). Even if I do not mention this, the legislature is in my opinion obliged to regulate also some other questions. In particular, how the affiliation with the Romany community is established and how it is established for an individual member that he or she lives on the territory of the municipality which represents a constituency and is as such a "citizen - Romany community member", which is the basis for being entered onto a special voting list. It depends on this who has the right to vote and be elected a municipal council member - Romany community member. These questions must be regulated by statute so that Romany community members may exercise their special voting right. The statutory regulation of these questions mean also the regulation of those "conditions which need to be fulfilled for the fulfillment of a municipality's obligation". Moreover, in my firm opinion, they have to be regulated by statute also for reason that all the Romany community members on the whole territory of Slovenia are ensured equality in exercising their special voting right. Merely a provision in the municipal charter that they are entitled to a representative (it could even be two or three) in the municipal council does not contribute anything to its actual and equal implementation. It only creates the apparent impression of constitutionality and legality.

Notes:

1Since Judge Testen writes in Item 2 of his concurring opinion why there is allegedly an internal contradiction in the decision, I am not going to repeat that in my separate opinion.

2Slovar slovenskega knji_nega jezika (The Dictionary of the Slovene Literary Language), DZS, Ljubljana 1994, p. 28.

3Hungary determined in the 1993 LXXVII Minority Act that a community can be recognized as a national minority if it has been present in Hungary for at least one hundred years, if its members are Hungarian citizens and have a special language, culture and tradition. Roma are the largest ethnic community in Hungary with 4% of the population (according to the East European Constitutional Review, Winter 1998, p. 16). In Austria, which recognized Roma by a federal government decree as a national community in the sense of the 1993 National Communities Act, national community members must be Austrian citizens and must have lived for decades as citizens in the State (25 to 90 years). According to the collections of papers The Ways for Improving the Situation of Roma, op. cit., p. 66.

Judge

Dr. Janez _ebulj

The Concurring Opinion of Judge Testen

1. There exists internal contradiction between the individual items of the disposition - and, parallelly, also between the individual items of the reasoning. It seems to me important to highlight this contradiction and state additional reasons, in addition to the reasons stated in the decision, why I could nevertheless vote in favor of such prima facie inconsistent internal solution. I see this important in order to prevent the possible impression that when reviewing the Charter the Court unknowingly destroyed what it had built when reviewing the Act. Also, I want to prevent the possible misconceptions of too broad precedent effects of the decision in the part relating to the Charter.

2. The internal contradiction to which I referred in the previous item is the following: the Constitutional Court established the unconstitutionality of ZLS in Item 1 of the disposition and substantiated this unconstitutionality in Item 12 of the reasoning by the existence of a gap in the law in ZLS since it does not contain provisions which would make possible the implementation of Art. 39.5 of ZLS. The Act should contain criteria on the basis of which it would be possible to establish whether an autochthonously settled Romany community lives on the territory of a certain municipality. This substantiation thus means that, pursuant to the existing legal regulation, it is impossible to ascertain in a manner that conforms with the Constitution in which municipalities a Romany community is autochthonously settled. I voted in favor of the decision, which means that I thereby agree with this position. In Item 2 of the disposition the Constitutional Court then established that the Charter of Novo Mesto Urban Municipality was inconsistent with (the same) ZLS since it did not determine that the Romany community autochthonously settled there has a representative on the municipal council. This item of the disposition is substantiated in Item 13 of the reasoning where the Constitutional Court had to ascertain at least for Novo mesto exactly that it said in the previous item that it was impossible to be ascertained. I voted for the decision, therefore I also agree with such position.

3. How is it possible to nevertheless logically overcome the mentioned contradiction within the decision itself? Art. 65 of the Constitution does not grant to the Romany community living in Slovenia a clearly defined status and special rights. The regulation of this question is entirely left to statute. However, the mentioning of this community and the constitutional order that the special rights of this community be regulated by statute give this community a constitutionally protected and, by the nature of things in a certain respect, privileged status. In this view, the absence of any statutory regulation which would determine the special rights of this community represents by itself an unconstitutional gap in the law. As a rule, also in the case of this gap in the law it is not possible and not necessary to define where it exists within the legal system: in which statute this regulation is missing and whether this status should be regulated by a special "systemic" statute.

4. In connection with the mentioned case, it is specifically necessary to mention that the right of the Romany community to have in the representative body of certain local communities at least one representative does not directly originate from the Constitution. This right (as one of the possible special rights) was vested in the Romany communities autochthonous settled on a certain territory by Art. 39.5 of ZLS. The matter concerns a provision which determines a part of the contents of the constitutionally guaranteed (special) status of the Romany community. From here on it is possible to deal with a gap in the law not only because the provision which is not clearly defined makes possible in contrast with Art. 2 of the Constitution, different application and arbitrariness by deciding bodies, but also because this regulation, which began to regulate the constitutionally protected status determined in Art. 65 of the Constitution, does not complete this. At this point, the gap in the law also represents a violation of Art. 65 of the Constitution. The matter does not only concern the non-fulfillment of the statutory obligation determined in Art. 39 of ZLS, but also the obligation determined in Art. 65 of the Constitution.

5. In this case the Constitutional Court also held a public hearing. By deciding to hold such hearing it already indicated its legal view on the subject of the controversy. A public hearing is a procedural act intended in particular for fact-finding. Also, in reality, the Constitutional Court examined at the public hearing inter alia the facts whether there lives a Romany community on the territory of Novo Mesto Urban Municipality, how large it is and how long it has lived there. The Court summarized these findings in Item 13 of the reasoning. I believe it is worth mentioning that, in addition to the said facts, the representative of the Office for Nationalities expressly confirmed that Roma are properly organized on the mentioned territory. This is in my opinion one of the key reasons that the discussion about a per se community is possible, as about some real community whose interests can be expressed through its elected representative. All these were the reasons for all the experts participating in the proceedings to make a firm enough conclusion in this particular case, notwithstanding the absence and lack of clear determination of the contents of one of the premises, that on the territory of Novo Mesto Urban Municipality there lives an autochthonous Romany community. The public hearing and the adversary manner of establishing facts are the reasons why it was possible to ascertain in the case of Novo Mesto Urban Municipality that there lives an autochthonous Romany community, despite the previous principled finding that the existing legislation as a rule (on why only "as a rule" although this expression does not appear in the text of the decision, see the continuation of this opinion) prevented such finding.

6. Furthermore, it is necessary to consider that although the controversy regarding the constitutionality and legality of the Charter was within the proceedings of so-called abstract control, it had numerous characteristics strongly typical of constitutional-complaint proceedings. The matter concerned a controversy commenced by a community representative who wanted to run for the office of councillor in the local elections in the concrete municipality, however such candidacy was in this case made impossible. The Charter is a municipal regulation and in this part this Constitutional Court decision has erga omnes effects, however, in reviewing how much the disposition regarding the Act truly prejudices against a decision concerning this Charter, it is necessary to consider that the situation as regards the possibility that in this respect the review of the constitutionality or legality of charters of certain municipalities can differ to an important extent. The norm-giver must consider typical situations when adopting general acts. Also the Constitutional Court has often emphasized that in adopting regulations the norm-giver cannot consider every possible situation. In this case, which concerns a legislative omission, this was reflected in a manner such that, on the level of abstract review in the framework of which the Constitutional Court must consider typical situations, the Court's substantiation that ZLS impedes the exercising of the rights determined in Art. 65 of the Constitution, is well grounded. It is possible to substantially envisage in advance that, without arbitrary decisions, it will not be possible to reliably answer the question of whether in every municipality in which Roma lives, there also lives an autochthonous community entitled to a representative on the municipal council. In the concrete case of Novo Mesto Urban Municipality, it appeared at the public hearing that -- in the mentioned view - the matter concerned an atypical case where the Constitutional Court could, by aid of expert opinions, conclude without arbitrariness, given also the absence of an explicit statutory basis, that there existed such community.

7. It would be constitutionally unacceptable if the Constitutional Court deprived this concrete and, following the described characteristics, special Romany community of its representation in the municipal council only for reason of preserving the appearance of the internal coherence of its decision and postponed the exercising of its constitutional right until such time when the National Assembly, which has so far demonstrated inadmissible inertness where such decisions are concerned, regulates this question in a manner such that it suppresses the need to take arbitrary decisions in the areas in which, given the existing statutory regulations, such arbitrary decisions cannot be prevented.

Judge

Franc Testen