30 January 1997
D E C I S I O N
At the session of 30 January 1997 concerning the procedure for the review of constitutionality commenced upon the request of Kranj Urban Municipality represented by its mayor Vitomir Gros, the Constitutional Court
d e c i d e d:
Provisions of Article 110, Paras. 1 and 2 of the Defense Act (Official Gazette of RS, No. 82/94) are not in disagreement with the Constitution.
R e a s o n i n g:
1. The petitioner considers that the provisions according to which with the coming into force of the Defense Act (hereinafter: "the ZObr)") the Ministry of Defense shall take over the equipment and weapons of liaison units and information centers and weapons and equipment designed to be used in the activities of municipal administrative and other bodies, companies, institutions and other organizations designed to operate during the war - with such weapons and equipment becoming the property of the State - jeopardize, in so far as the said weapons and equipment had been financed from municipal resources (or resources of other bodies, companies or institutions mentioned), the rights of the municipality, for they imply the taking away of property right and nationalization without compensation; in addition, they constitute a violation of prohibition against retrospective effect of statute by the fact that they apply to items which had been purchased already prior to the coming into force of the statute concerned.
2. The petitioner proposes to the Constitutional Court to find the disputed provisions contrary to the Constitution.
3. Concerning his being a holder of corresponding authorization, mayor Vitomir Gros makes reference to Article 113 of Kranj Urban Municipality Charter (Official Gazette of RS, No. 43/95), which provides that municipal council or mayor may lodge a request for the review of constitutionality of laws and regulations of the State which interfere with the constitutional position and rights of the municipality.
4. The opposite party among other things explains that, on the basis of Article 5 the Enabling Statute for the Implementation of the Constitution of the Republic of Slovenia (Official Gazette of RS, No. 33/91) and of provisions of the Defense and Protection Act (Official Gazette of RS, No. 15/91), municipality performed some functions in the field of defense until this whole field came within the competence of the State on the basis of Administration Act (Official Gazette of RS, No. 67/94) and the ZObr (Article 3, Para. 5 of the ZObr). Thus, on the basis of regulations and instructions of competent State authorities, also at municipal level liaison units and information centers were established, armed and equipped; also provided with weapons were municipal administrative bodies for defense matters and some other entities in municipalities. Weapons and equipment (and records and documentation) of those units, bodies and organization, which were used or stored by municipal administrative authorities prior to the coming into force of the ZObr, are dealt with by the disputed provisions of this Act, which transfers defense tasks entirely to State authorities. The position of the opposite party is that the disputed provisions are not in conflict with the Constitution.
5. The Constitutional Court found that procedural conditions for lodging a request under Articles 21 to 23 of the Constitutional Court Act (Official Gazette of RS, No. 15/94 - hereinafter: "the ZUstS") were fulfilled.
6. The disputed provisions cover weapons and equipment as well as records and documentation of liaison units, information centers and some other constituent parts of the defense system of the Republic of Slovenia, in so far as, in accordance with the Defense and Protection Act, the municipality of that time was responsible for their organizing, ensuring and financing according to the instructions of the authorities of the Republic competent for defense matters, in accordance with Article 5 of the Enabling Statute for the Implementation of the Constitution of the Republic of Slovenia, which envisaged such interim role of municipalities of that time and gradual passing of competencies from the municipality to the State.
7. In so far as each individual municipality had ensured the weapons and equipment for the purposes covered by both disputed provisions already prior to the proclamation of the Constitution of the Republic of Slovenia, that was socially-owned property managed by municipality, and, if for nothing else, it is for this reason that one cannot speak of the property of municipality and of municipality as having been deprived of the property right with regard to those items. As the new constitutional system no longer recognizes socially-owned property, the tasks of the legislator is by statutory acts to assign to each particular part of socially-owned property appropriate owner. In doing so the legislator must, when ownership of things intended for public use is concerned, among other things take care that continuity and good husbandry in the management of specific tasks of the State will be ensured. The disputed provision of Article 109, Para. 2 assigned the owner for the said part of socially-owned property - this being a matter falling within the competence of the legislator; as the new constitutional system has made defense a matter which is entirely within the competence of the State, the selection of the owner is also in conformity with the Constitution.
8. In so far as municipality ensured the items covered by the disputed provisions after the coming into force of the Defense and Protection Act, on the basis of Article 139, Para. 1 of the said Act it did so "in the same way as in the case of public expenditure requirements", that is, through budgetary funds.
Budgets of former municipalities were harmonized at national level, sources of budgetary funds were determined by statute, the tasks such as those relating to the field of defense were evaluated on the basis of uniform criteria, and the costs of financing such tasks depended to a great extent on instructions from competent central government authorities. Both from the viewpoint of the origin and supply as well as expenditure of material resources, and in particular having in mind strict assignment, suitability and use of the items themselves (weapons, special equipment), what was involved was a typical case of public property. Municipality was the owner to the extent and for so long as specific defense tasks were assigned to it by statute. And to the said extent, funds were ensured for the municipality within the framework of the system of public finance.
9. The said quintessential characteristics of the items covered by the disputed provisions, namely, that those were assets acquired by means of public funds and designed exclusively for use in reference with specific public tasks, were not in any way changed by the fact that the said property may have been transferred to municipalities who succeeded former municipalities.
10. With the coming into force of the ZObr, defense matters passed entirely within the competence of the State (Article 3, Para. 5 of the Act), inter alia also the tasks (and employees, Article 111) where (or by whom) the items under the disputed provisions were used. In accordance with the legal nature of public property it is that public property assigned for specific tasks follows such tasks and that transferred together with such tasks is also the competence for using and managing such specific part of public property.
11. The measure envisaged by the disputed provisions does not interfere with the constitutional position of municipality, for in accordance with the Constitution new municipalities as local self-government units do not have any such tasks or powers whose implementation could be made more difficult by the disputed provisions.
12. Also unjustified is the reproach that the disputed provisions are contrary to the prohibition of retrospective effect of acts, for the nationalization concerns also the assets which were purchased already prior to their effective date. For it is in the nature of the matter concerned that an act of taking over of items and of their nationalization cannot relate to anything else but to existing items, that is, to those which have been purchased already; and it came into effect, as expressly provided in Article 110, Para. 2 of the ZObr, on the effective date of the Act, which also applies to the take-over of assets and equipment under Paragraph 1 of the said article.
As has been explained by the opposite party, 31 December 1993 is just the date of the last inventory of the situation obtaining in municipalities - for the Act was passed during 1994 - which has made it possible for the legislator and the body responsible for implementing the Act to determine the items concerned.
13. The request does not refer to records and other documentation, whose takeover is also regulated by the disputed Article 110, Para. 1 of the ZObr, as can be concluded from the reasons given for the request, which is why it was not necessary to engage in the review of constitutionality of the said portion of the disputed provisions.
14. This Decision was made on the basis of article 21 of the ZUstS by the Constitutional Court, composed of Justices: Dr. Tone Jerovšek, President, and Dr. Peter Jambrek, mag. Matevž Krivic, mag. Janez Snoj, Dr. Janez Šinkovec, Dr. Lovro Šturm, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M. Zupančič. The Decision was reached unanimously.
President of the Constitutional Court:
Dr. Tone Jerovšek