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Constitutional Court Decision No. U-I-182/21, U-I-184/21, dated 9 May 2024

In this case, the Constitutional Court again considered the constitutionality and legality of the procedure for renaming Titova cesta [Tito Street] in the Municipality of Radenci. The Municipality of Radenci wanted to rename a street that has had an established name since 1979 by adopting the Ordinance Amending and Supplementing the Ordinance on the Naming of Streets, Squares, and Settlements in the Municipality of Radenci.

The petitioners claimed that the municipality and the mayor had adopted the Ordinance in contravention of the provisions of the Constitution, and further claimed that the mayor had failed to comply with the Decision of the Constitutional Court in a previous case of the same type (Decision No. U-I-2/21, U-I-3/21, dated 20 May 2021). They alleged that the mayor handled the procedure concerning the initiative for a local referendum in an inappropriate manner, which allegedly led to the mayor preventing the holding of a referendum on the renaming of Tito Street.

The Municipality of Radenci rejected the petitioners' allegations. It also alleged that the petitioners were pursuing an unconstitutional purpose. The municipality referred to Constitutional Court Decision No. 109/10, dated 26 September 2011, in which the Constitutional Court held that newly naming a street "Titova cesta" is unconstitutional. According to the Municipality of Radenci, already established designations do not constitute a significant differentiating circumstance in the sense of the cited Constitutional Court Decision of 2011.

The Constitutional Court clarified that the local referendum as an institution is the fundamental and most important form of direct decision-making in their local community by the residents of the municipality. It reiterated its position from Decision No. U-I-2/21, U-I-3/21, dated 20 May 2021, i.e. that the statutory 15-day period that runs from the adoption of an act constitutes an independent stage in the procedure for the adoption of a municipal regulation that enables the potential proposers or initiators of a referendum to acquaint themselves with the adopted regulation and to decide whether they will propose the calling of a referendum or petition for the calling of a referendum. If a mayor promulgates and publishes an adopted regulation before the expiry of the time limit, such conduct constitutes an arbitrary act of a public authority that prevents the residents of a municipality from participating in the management of public affairs, while at the same time the municipal regulation thus enacted is the result of an unconstitutional and unlawful procedure.

In the present case, the Constitutional Court established that the mayor again promulgated and published the challenged ordinance before the expiry of the mentioned time limit and in doing so prevented the residents of the municipality and the members of the municipal council from initiating a referendum procedure. Therefore, the Court again established that the challenged ordinance was adopted in a procedure inconsistent with the third paragraph of Article 46 of the Local Self-Government Act and, consequently, with the third paragraph of Article 153 of the Constitution, which determines that regulations and other general acts must be in conformity with the Constitution and laws.

The Constitutional Court further established that such conduct of the mayor could not be understood in any other way than as intentional conduct contrary to a previous decision of the Constitutional Court. If a municipality or a mayor deliberately disregards a decision of the Constitutional Court, the petitioners who have already succeeded in proving the inappropriateness of the relevant conduct before the Constitutional Court are denied legal protection and the role of the Constitutional Court within the constitutional order is negated. The Constitutional Court therefore held that the mayor's conduct in the case at issue also violated the principle of a state governed by the rule of law (Article 2 of the Constitution) and the principle of the separation of powers (the second sentence of the second paragraph of Article 3 of the Constitution).

The Constitutional Court further clarified that a mayor may only verify whether all the procedural requirements for initiating a referendum procedure have been met, but may not decide on the substantive adequacy or constitutionality of a referendum initiative. The legislature conferred this competence on the Constitutional Court.

As the challenged ordinance was adopted in contravention of the third paragraph of Article 46 of the Local Self-Government Act and the third paragraph of Article 153 of the Constitution, as well as Article 2 of the Constitution and the second sentence of the second paragraph of Article 3 of the Constitution, the Constitutional Court annulled it.