Organizational Policies of Local Self-Government in a Modern Democratic State

Journal of Environmental Treatment Techniques

2019, Volume 7, Issue 4, Pages: 631-640

J. Environ. Treat. Tech.

ISSN: 2309-1185

Journal web link: http://www.jett.dormaj.com

Organizational Policies of Local Self-Government

in a Modern Democratic State

Konstantin A. Polovchenko

PhD in Law, Associate Professor of the Department of Constitutional Law, MGIMO University, Moscow

Received: 12/06/2019

Accepted: 1/09/2019

Published: 03/09/2019

Abstract

The article presents an analysis of the specific character of the local self-governance in the Republic of Serbia. The main technique

of the research was the system method, which allowed analyzing the significant role of local self-government in the system of public

authority in Serbia. As a part of the study of the institution of local self-governance in the Republic of Serbia, the author came to the

conclusion that, on the one hand, its modern constitutional-legal regulation in Serbia revived the traditions of local self-governance

laid down by the 1888 Constitution of the Kingdom of Serbia, and on the other hand, it fully meets the demanding requirements imposed

by the 1985 European Charter of Local Self-Government.

Keywords: the 2006 Constitution of the Republic of Serbia, the competence of local governments, citizens' initiative, guarantees of

local self-governance, constitutionality and legitimacy review of the acts of local authorities.

population’. Indeed, the modern concept is based on the fact

Introduction

that local communities are an essential component of a

democratic state regime, and the right of citizens to participate

in the management of public affairs is an integral part of the

democratic principles of the organization of most modern

states (5).

The tradition of local self-governance has long historical

roots. The tribal community as the primary unit of human

society may to a certain extent be considered its prototype. The

forms of human interaction and self-organization became

more complex with the development of civilization; the

formation of local government in its modern sense falls at the

The institution of local self-governance in Serbia also has

a great history (12). The first steps in the formation of a

modern-type local government system were made in the 1888

Constitution; however, this process has evolved with varying

success. During the period of socialist Yugoslavia, the

government has conducted an experiment on the introduction

of an integral self-governance system. The concept of integral

self-governance provided that the opština municipality, being

an administrative-territorial unit, had the status of a socio-

political association. This, in the fair opinion of professor

Stojanović, in practice led to its enactment as a ‘mini-state’. At

the same time, according to the 1990 Constitution, the

institution of local self-governance was significantly updated;

this was due to the fact that Serbia abandoned the socialist

model in the early 1990s. Thus, in the new historical

conditions, opština was designed as a decentralized local

government, based on the representative system, the

separation of powers and the right of citizens to manage local

affairs (15).

end of the 18 century. It was then that the first theories of

self-governance appeared; later the phenomena became the

subject of state regulation (England, France, Prussia, etc.). At

the same time, the consolidation of rights of local self-

government at the constitutional level for the first time was

provided for by the 1831 Constitution of Belgium, which

played a discrete role in disseminating the ideas of local self-

governance in European states. Yet the stable traditions were

formed already in the second half of the XX century by

establishing the mechanisms and procedures of self-

governance and developing the interaction with government

bodies. Hence the regulation of local self-government became

an indispensable component of the new constitutions of the

majority of democratic states around the globe.

The most important milestone in the formation of the

modern concept of local self-governance was the adoption by

the Council of Europe of the European Charter of Local Self-

Government on October 15, 1985, in which local self-

government is defined as ‘the right and the actual ability of

local authorities, acting within the limits of the law, to be able

to regulate and manage a substantial share of public affairs

under their own responsibility in the interests of the local

Therewith, the existing Serbian Constitution of 2006 made

significant adjustments to the system of local self-government.

In particular, if the Local Government Act of 2002 established

a system of local government bodies based on the principle of

Corresponding author: Konstantin A. Polovchenko, PhD in Law, Associate Professor of the Department of Constitutional Law,

MGIMO University, Moscow; E-mail: kpolovchenko@gmail.com.

Journal of Environmental Treatment Techniques

2019, Volume 7, Issue 4, Pages: 631-640

supremacy of the chairman (with the envisaging of chairman’s

direct elections), the 2006 Constitution provided for the

Assembly to be the highest local government body (Part 1 of

Article 180 of the Constitution), which meant a transition to a

model of local self-governance based on the principle of the

rule of the Assembly.

single unifying territory center of local government location

(Article 17 of the Law on Local Self-Government). The main

and highest legal act of a local government unit is a charter

adopted by a representative local self-government body - the

Assembly (1).

So, according to Article 12 of the 2006 Constitution of the

Republic of Serbia, state power was limited to the right of

citizens to regional autonomy and local self-government.

Article 2 of the Law on Local Self-Government defines the

latter as ‘the right of citizens to manage public affairs that have

a direct, common interest for the local population, directly and

through freely elected representatives in local government

units, as well as through the right and the ability of local

governments within the framework of the law to manage

public affairs that are within their competence and are of

interest to the local population’. Thus, the self-governance is

represented in the Law on Local Self-Government both as a

right of citizens and as an aggregate of bodies and institutions

of local self-government (1).

Results and Discussion

.1 Constitutional-legal foundations of local self-governance

in the republic of serbia

According to the 2006 Constitution, opština is the main

territorial unit of local self-governance implementation; this

unit has the right to directly and independently (by the

population or through its bodies) exercise all rights and

obligations within its competence. Such unit has to consist of

at least 10,000 residents, however, the municipalities formed

before the Law on Territorial Organization of the Republic of

Serbia entered into force may also account for less. In addition,

as an exception due to special economic, geographical or

historical grounds, a new opština with a population of fewer

than 10,000 people also can be established (Article 18 of the

Law on Local Self-Government) (1).

Methodology

As for the cities as another variety of municipalities in the

Republic of Serbia, their status is governed by the Law on

Territorial Organization, as well as by the Law on Local Self-

Government. The legislative definition of a city reads as

follows: ‘a city is a statutory unit of local self-government,

which is an economic, administrative, geographical, and

cultural center for a larger region and has more than 100,000

inhabitants’ (Part 1 of the Law on Local Self-Government and

Part. 1 of Article 17 of the Law on Territorial Organization).

As per professor Marković, the city, in accordance with its

functions established by the Constitution and laws, in fact, is

claimed to be opština as well, but nevertheless, the city differs

from opština not only by its name (6). Thus, the Law on Local

Self-Government stipulates that its provisions applicable to the

opština municipality may also regulate the status of the city,

unless otherwise provided by the Law itself (Part 4 of Article

23). Apropos, the Law on Local Self-Government provides as

an exception that due to special economic, geographical or

historical grounds, a territorial unit with a population of fewer

than 100,000 may also be recognized as a city (1).

So, the territory on which the city is formed represents

natural and geographic integrity with economic and

communication links between settlements and a single center

of government location. At the same time, the charter of the

city may stipulate the establishment of two or more urban

opština municipalities on the city territory; such municipal

communities may also exercise some certain powers of the city

competence. Such an additional citywide structure caused

criticism from a number of Serbian constitutionalists. Thus, in

particular, professor Pajvančić emphasized that the presence

of urban opština as an independent unit of local government in

the city leads to unnecessary competition, duplication in

activities, and inability to ensure the unity of functions of the

city as a unit of local government, which is utmost irrational

(9).

The object of this study is a set of constitutional-legal

relations associated with the system of local self-government

in the context of the process of improving the organization of

public authority in the Republic of Serbia. The subject of the

study is represented by the legal norms governing the

procedures for exercising local self-governance, defining the

organization and activities of local self-government bodies,

and finally, establishing guarantees for local self-governance

in the Republic of Serbia. The methodological basis of the

study was a set of general and special scientific methods of

cognition. The study is based on the system analysis method,

which allowed investigating the system of local self-

governance as a component of public authority in the Republic

of Serbia. In addition, the author used historical-legal and

sociological methods; the source-study base was composed

mainly of international and domestic regulatory sources of the

Republic of Serbia.

Part 1 of Article 3 of the Law on Local Self-Government

states that the local self-governance in the Republic of Serbia

is exercised in the cities, opština municipalities, and also in the

city of Belgrade as a separate territorial unit. At the same time,

opština is the main unit of local self-government in the

Republic of Serbia, and the presence of units of local self-

governance in the form of cities and the city of Belgrade is

intended, according to professor Marković, to ‘soften the

uniformity of opština as the main unit of local self-

government’. Thus, the Republic of Serbia provided for a

single-stage local government, the territorial units of which are

opština municipalities; the cities represent the separate

additional units within this structure. As for the territory and

location of local governments, they are determined by law. The

creation, abolition or other changes of the territory of a local

government unit are preceded by a consultative referendum on

the territory of the relevant local unit. As a general rule, the

municipal territory is comprised of the territories of one or

several localities, which are, respectively, its constituent

cadastral opštinas. The territory within which a local

government unit is formed is a natural and geographical

integrity, economically connected and having a developed

system of communication between settlements and with a

As for the capital of the Republic of Serbia, the status of

the city of Belgrade is regulated by a special law (Article 26 of

the Law on Local Self-Government) (1). Such a law is the

Capital Act, according to which Belgrade has the status of a

special territorial unit. Thus, in accordance with Part 2 of

Article 6 of the Capital Act, ‘in order to more effectively and

Journal of Environmental Treatment Techniques

2019, Volume 7, Issue 4, Pages: 631-640

economically justified exercise certain powers of the city of

Belgrade, the city charter establishes urban opština

municipalities within the framework of the legally established

territory of the city of Belgrade’. As follows from the

provisions of this law, the division of the city of Belgrade into

urban opština municipality (Belgrade also has 7 ‘suburban’

municipalities) is a legal obligation. Moreover, in contrast to

the status of urban opština in other cities, the Capital Act

directly states that urban opština in the city of Belgrade enjoys

referred to in the literature as community powers. Attention

also should be paid to the fact that these powers are prescribed

in even more details in the charters and other general acts of

local government units (1).

Thus, in addition to the independent powers, in the

exercise of which the opština enjoy full autonomy in relation

to the state, the opština, as mentioned above, also have

delegated powers. These are state powers that fall under the

responsibility of the Republic. At the same time, the 2006

Constitution provided for the right of the state (by adopting a

special act) to authorize the exercise of certain powers by the

relevant units of local self-government with the appropriate

transfer of the necessary funds.

(

along with the city itself) the status of a legal entity. The City

Charter defines the powers that fall under the jurisdiction of

the city of Belgrade, and that are exercised by the urban

municipalities. At the same time, the city of Belgrade has the

right to abolish the urban opština municipality and annex its

territory to one or more other urban opštinas (15).

According to Article 21 of the Law on Local Self-

Government, individual powers of state administration may be

assigned by law to all or particular opština municipalities in

order to more efficiently implement the rights and duties of

citizens and meet their needs of direct interest for the

professional and personal life (1). Of significant interest is the

fact that an autonomous region also has the right to impose (by

its decision) the exercise of particular powers within its

competence on a local government unit on the territory of an

autonomous region. Funds for the exercise of delegated

powers are provided for in the budget of the Republic of Serbia

or, respectively, of an autonomous region, depending on which

authorized body had delegated named powers. At the same

time, when it comes to delegated powers, the law generally

provides that the powers of the Republic can be transferred to

local government units, subjected to certain personnel,

technical and organizational conditions, which are determined

by special laws. Professor Marković observed at the same

time, that if the system of legislative enumeration provides for

independent powers, then the system of general clause is

acting for the exercise of delegated powers, since these powers

are not listed in a single general law, but, as mentioned above,

the Law on Local Self-Government states that local units may

exercise state powers only if they are directly entrusted to them

by law (17).

The Law on Local Self-Government has determined the

nature and type of state powers that the Republic of Serbia can

impose on the opština. The Republic may delegate by an act to

the municipal authorities the implementation of laws, other

regulatory and general acts, and exercise of other powers of

state administration. Thus, in accordance with Article 22 of the

Law on Local Self-Government, opština exercises (as

delegated) powers for inspectional supervision in the areas of

education, health care, environmental protection, distribution

of goods and provision of services, transportation, agriculture,

water use and forestry, as well as some other inspectorial

powers in accordance with the law. As noted by professor

Pajvančić, the delegated powers exercised by the units of local

self-government remain the powers of the Republic, i.e. state

powers, however, their implementation is assigned to non-

state bodies such as, in particular, local authorities (9).

Exploring the competence of the city as a municipal entity

on the territory of local governance one should pay attention

to the fact that, according to Article 24 of the Law on Local

Self-Government, the city exercises (along with the opština

powers) other powers, including assigned by law powers in the

field of public administration. Thus, the city as a unit of local

self-government can be assigned by law with other powers of

state administration (along with the opština powers), which is

The degree of autonomy and independence of local self-

government is manifested in the scope of authority of local

units. Opština as the main unit of local self-government in

Serbia has two types of competence: independent (primary)

and delegated (decentralized) competence. Opština exercises

its independent powers through its bodies and is responsible

for their implementation; such powers are established by the

Constitution in ambivalent manner, namely: issues relating to

the subject of exclusively independent powers of the opština,

and those areas to which, among other things, the independent

competence of the opština extends. As for the issues associated

with the subject of exclusively independent powers of opština,

in accordance with Article 190 of the Constitution of the

Republic of Serbia, they include: adoption of the budget,

urbanization and development plans; establishment of

community insignia and its authorized use; management of

municipal property and establishment of the responsibility for

violation of regulatory acts; and ensuring the implementation,

protection and development of human and minority rights in

particular opština along with freedom of the media. Within the

framework of independent powers, the opština also regulates

the activities of its bodies and agencies. The Charter, as the

highest act of the opština, establishes the bodies of local self-

government, specifies their powers and determines the order

of their activities.

The 2006 Serbian Constitution introduced the exercise of

the independent powers of the opština in following spheres:

public utility, land development, local mass transit, culture and

education, health care, social security and protection of

children, cultural and historic sites, sports and physical culture,

tourism and hospitality, handicrafts and trade, agricultural land

uses, disaster management and environmental protection (9).

It is quite remarkable that the spheres of the independent

powers exercise are regulated by the Constitution in a very

general manner; therefore it was of utmost importance for the

legislators to define the boundaries of this competence, given

that the Republic of Serbia, through its state bodies, has a

certain amount of competence in the same areas. At the same

time, as professor Marković aptly noted, this was essentially

important for detailing the independent powers of the opština,

since their competence is a constant within the competence of

all three types of local government units (6). Noteworthy is the

fact that the Serbian legislators have sufficiently fully and in

detail settled the independent powers of the opština in the Law

on Local Self-Government. Thus, Article 20 of this Law

divides such powers into 39 groups of powers of direct and

general interest to the local population, and therefore often

Journal of Environmental Treatment Techniques

2019, Volume 7, Issue 4, Pages: 631-640

associated both with the level of economic and social

development of a particular city and with its other features.

This denotes the right of Republican legislation to distinguish

between the scope of authority delegated by the opština and

the city. Another innovation of the Law on Local Self-

Government was that the city, as a unit of local self-

government, was given the right, in accordance with the law,

to create a community police force, as well as to ensure and

organize the exercise of its necessary powers (Part 2 of Article

overseeing constitutionality and legitimacy (Part 2 of Article

12 of the Constitution of the Republic of Serbia) (17).

Thus, according to Article 81 of the Law on Local Self-

Government, the Government is obliged to suspend the

execution of the general act of a local self-government unit,

which, according to the Government, does not comply with the

Constitution or the law, by a decision that comes into force

from the date of publication in the Official Gazette of the

Republic of Serbia (1). This decision is terminated if the

Government, within five days of the official publication of the

decision, does not initiate a procedure for verifying the

constitutionality and legitimacy of the general act in the

Constitutional Court of Serbia.

24). As for the powers of the capital, the city of Belgrade has

both the powers of opština and the city established by the

Constitution and the law, as well as special powers derived

from its capital provision and stipulated by the Capital Act

(

Part 2 of Article 8) (1).

The competent ministry institutes a procedure for

verifying the constitutionality and legitimacy of the charter,

normative or other general act of a local government unit in

the Constitutional Court if it considers that this act does not

comply with the Constitution, law or other republican

normative act. The authority of the regional autonomy has the

same power if it considers that the statute, normative or other

general act of a local government unit does not correspond to

the normative acts of an autonomous region (Article 82 of the

Law on Local Self-Government) (1).

If the Ministry of Public Administration and Local Self-

Government or, respectively, the competent authority of the

regional autonomy, considers that the general act of the body

of local self-governance does not comply with its charter, then

the Ministry or regional authority denotes such act to the

assembly of the local government unit for taking appropriate

measures. Whether the local assembly does not take action in

accordance with the proposals of the above-mentioned body,

the Ministry initiates proceedings in the Supreme Court of

Cassation of Serbia and at the same time makes a proposal to

the Government to suspend the execution of the relevant act of

the local unit until a decision is made by the Supreme Court.

As it was clearly indicated by professor Marković, this

measure is aimed at ensuring the compliance with the highest

act of the local government unit and its statute, which is why

this type of cases are initiated in the highest judicial body of

the Republic of Serbia, and not in the Constitutional Court

(17).

If the Ministry of Public Administration and Local Self-

Government concludes that a particular act of a body or agency

of local self-government in respect of which judicial protection

is not provided does not comply with the law or another

normative act, or, respectively, with the decision or other act

of the local government unit, then the Ministry submits a

proposal to the local unit for the repeal or annulment of such

an act. If, however, the Assembly does not take appropriate

action within one month after receiving such a proposal, the

Ministry will independently cancel or annul the corresponding

particular act (Article 84 of the Law on Local Self-

Government) (1).

The Law on Local Self-Government provided a number of

grounds for the dissolution of the assembly of a local

government unit (1). Thus, the Government of the Republic of

Serbia, upon the proposal of the Ministry of Public

Administration and Local Self-Government (the competent

authority of the regional autonomy), has the right to decide on

the dissolution of the local assembly under the following

circumstances: first, if the Assembly does not hold a sessions

for more than three months; secondly, if it does not elect a

In order to exercise its powers, a local government unit has

relative financial autonomy, given special and stable sources

of income. The financing of the powers of a local unit is

provided from its budget and the budget of the Republic.

Budget funds of a local unit are provided from independent

and from transferred public revenues, income from borrowing

and other income defined by law. If a local government unit

cannot provide funding for its powers from own annual

budget, it will be complemented with additional targeted funds

from the Republican budget.

The established by law autonomous public revenues of a

local government unit include municipal administrative fees

collected on its territory, local utility charges, housing charges,

fees for the use of land plots for construction, etc. The

transferred public revenues include taxes provided for by law

and collected on the same territory, such as personal income

tax, inheritance and gift tax, tax on the transfer of absolute

rights, etc. As for the relations between the Republic and local

self-government units, according to Article 78 of the Law on

Local Self-Government, the Republican bodies, regional

autonomy bodies, and bodies of local self-governance

cooperate with each other in order to exercise their rights and

obligations in accordance with the Constitution, law and other

regulatory acts (1). There are several types of interrelations of

republican bodies and bodies of local government unit. The

bodies of the Republic and of the regional autonomy oversee

the legitimacy of the activities and acts of the bodies of local

self-governance in accordance with the Constitution and the

law. The competent authority of the local government unit is

obliged to timely provide the requested data and documents to

the republican body and, respectively, to the bodies of the

autonomous region, which oversees the legitimacy of the

activities and acts of the local unit. The Chairman of the

opština municipality is responsible for the submission of the

necessary data and documents; however, if the supervision is

carried out over the activities and acts of the municipal

assembly, then the responsibility for providing the necessary

documents is assigned to the secretary of the assembly.

In relations with local government units, the Republic of

Serbia can be represented by the Government, the Ministry of

Public Administration and Local Self-Government, or another

competent ministry. The aforementioned bodies have the right

to implement six options for state intervention in the affairs of

local self-governance, but solely for the purpose of

establishing constitutionality and legitimacy. Professor

Marković aptly noted that in this case, it is not a question of

mentoring the state over local self-government, but only of

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2019, Volume 7, Issue 4, Pages: 631-640

chairman of the opština or municipal council for one month

from the date of the formation or from the day of their

dismissal or, respectively, resignation; thirdly, if it does not

adopt a charter or the budget within the period prescribed by

law. If the Government of the Republic of Serbia decides on

the dissolution of the assembly of a local government unit, the

chairman of the National Assembly of the Republic of Serbia

shall appoint elections of councillor within two months from

the moment the decision on the dissolution of the local unit

takes effect (10). In this case, the term of office of councillor

elected under such circumstances is four years. Prior to the

formation of the assembly and the executive bodies of the local

government unit, current and urgent activities within the

competence of the assembly and the executive bodies are

carried out by the temporary unit of the local government,

consisting of a chairman and four members appointed by the

Government with regard to the political and ethnical

composition of the discharged assembly of the local unit

self-governance, where the representative body is the highest

body of local government (1).

According to Part 2 of Article 180 of the Constitution, the

assembly of a local government unit consists of councillors

elected for the term of four years. The number of councillors

in the opština assembly is determined by its opština, but cannot

be less than 19 and more than 75. The independence of

councillor of the local assembly is ensured both by the

immunity of state representative and by the prohibition of

conflicts of interest. Thus, according to Article 37 of the Law

on Local Self-Government, the councillor cannot be brought

to criminal responsibility, detained or subjected to another

form of responsibility for the expressed opinion or vote at a

session of the assembly and its working bodies. Thuswise, the

immunity of the local government councillor is remarkably

reduced compared to the immunity of the People’s Deputy of

the Republic of Serbia, since the councillor has only

substantive but not procedural immunity, and only in respect

to responsibility for the opinion and vote in the representative

body (13,16).

Considering the issue of the conflict of interest of the

councillor, the latter (along with the general provisions of

Article 6 of the Constitution, according to which no one can

exercise state or public functions if there is a conflict of

interests with the other official functions, activities or private

interests), according to the Law on Local Self-Government,

cannot be employed by the opština government, as well as by

the bodies appointed by the opština assembly. If an employee

of the opština council is also elected as a councillor, the rights

and obligations of this official of the opština administration

shall be suspended until the mandate of the councillor is

terminated. At the same time, the rules governing the

resolution of conflicts of interest in the exercise of public

authority do not preclude the application of the provisions of

the Law on Local Self-Government governing activities that

are defined as incompatible with the authority of the councillor

of opština municipal assembly (Article 30) (1).

The issue of the free mandate of the councillor deserves

particular attention. Thus, unlike the Law on Election of

Deputies, which regulates the casual relations of a candidate

for people's deputies and the party-bearer of the slate of

nominees (where the named candidate is listed), the Law on

Local Elections heretofore regulated in detail the issue of

mutual rights and obligations between the candidate to the

council of municipal representative body and the candidate’s

party-bearer in furtherance of the provisions of Part 2 of

Article 102 of the Constitution of Serbia. Thuswise, according

to the named article of the 2006 Constitution, a councillor is

free under the Law without the right of recall to place his or

her mandate at the disposal of a political party, from the list of

which this official was elected. In pursuance of this provision

of the current Serbian Constitution, Part 1 of Article 47 of the

Law on Local Elections provided that the party-bearer and the

council candidate could conclude an agreement that would

regulate mutual rights and obligations and provide for the right

of the party-bearer to file the resignation from the post of

councillor to the representative body of the municipality on

behalf of the councillor.

(

Article 86). The Government of the Republic of Serbia

appoints a temporary body also if the local government does

not hold elections of advisers within two months after the

announcement of the election results. The Speaker of the

National Assembly is obliged to decide on the appointment of

new elections to the assembly of the local government within

a month from the day when such elections were to be held.

3.2 Local authorities in the republic of serbia

So, according to Part 1 of Article 179 of the Constitution

of the Republic of Serbia, local government units, in

accordance with the Constitution and law, independently

regulate the structure and powers of their bodies and public

services. In the light of the above, both opština and the city

have approximately the same structure of local governments,

with rare exceptions, which are described below.

Opština bodies include local assembly, opština chairman,

council and board (15). Similar bodies exist in Belgrade and

other cities: the city assembly, the mayor, the city council and

the city government. Professor Stojanović noted that with the

departure from the socialist model of integral self-governance,

Serbia preferred a model of local self-governance based on the

principle of supremacy of the chairman in the system of self-

governing bodies, which implied direct election of the

chairman; the latter was also reflected in the 2002 Law on

Local Self-Government (4). However, the adoption of the

2006 Constitution stipulated that the assembly is the highest

body of local self-government (Part 1 of Article 180 of the

Constitution) denoted a transition to a model of local self-

governance based on the principle of supremacy of the

assembly. Thus, Article 180 of the Constitution stipulated that

the assembly is the supreme body of the local government unit.

As a result, the Law on Local Self-Government not only

duplicated the above constitutional provisions, but also

provided that the assembly carries out the basic functions of

local government, as established by the Constitution, the law,

and the charter of the local self-government unit. Thus, the

modern constitutional legislation of Serbia established the

assembly system of organization of power in the units of local

The common city assembly consists of no more than 90 councillors; the City Assembly of Belgrade consists of 110

councillors.

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2019, Volume 7, Issue 4, Pages: 631-640

Furthermore, in pursuance of the aforementioned

agreement, the council candidate transferred to the producer of

the list of candidates (or the party-bearer) the ‘blank

resignation’ - a written statement on the councillor’s

resignation, which gave the party (from which the councillor

was elected) the coming opportunity to dispose the

councillor’s mandate at its own discretion, including to make

such statement official at any time. This agreement was to be

concluded in writing; the signatures under the agreement, as

well as under the ‘blank-resignation’ had to be certified in

accordance with the procedure provided by law. Council

candidates after signing the relevant agreement were no longer

entitled to withdraw their application. Thus, the councillor

who signed (yet being a candidate) the above-mentioned

agreement was entitled to take part in the activities of the

representative body of the municipality, exercising all official

powers of a councillor, up to and including the approval of the

resignation by the representative body of the municipality; the

mentioned resignation letter was supposed to be passed to the

chairman of the representative body by the party, which listed

the elected councillor (Article 47 of the Law on Local

Elections).

Certainly, such legislative practice ‘brought to naught’ the

free mandate of the councillor, turning it into an actual party

mandates; such practice was deservedly criticized by both

Serbian academicians and European human rights

organizations. Even before the adoption of the 2006

Constitution of the Republic of Serbia, the Constitutional

Court in its decision of 2003 formed a position according to

which, since the mandate of a councillor is free (non-

imperative), such a mandate cannot be directly dependent on

membership in a political party and, respectively, in the

coalition of parties, which listed the elected official (2). As a

result, the Constitutional Court of Serbia in its decision of 2010

candidates and there is no council candidate left to be given

the mandate, then such mandate is transferred to the list of

candidates for municipal council who received the next largest

individual seat allocation and who did not receive the

councillor office. In this case, the written consent of the

council candidate to accept the mandate is necessary; the

authority of the councillor expires on the date of the loss of

authority to which this official was elected (Article 48 of the

Law on Local Elections). As for the competence of the

representative body of a local government unit, it has a wide

specter of powers, ranging from resolving financial issues to

maintaining local infrastructure.

The executive bodies in the units of local self-government

include the chairman and the opština council; Part 4 of Article

191 of the Constitution of the Republic of Serbia stated that

the Opština Municipal Assembly may decide on the formation

of the opština executive bodies in accordance with the law and

municipal charter (15). As a result, this version of the Law on

Local Self-Government provided that the chairman of the

opština is elected by the municipal assembly from among the

councillors of the assembly for a four-year term by secret

ballot by a majority of votes from the total number of opština

councillors (1). The chairmen can be dismissed before the

expiration of the term following the grounded proposal of at

least one-third of the councillors in the same manner in which

this official was elected. As pointed out by professor

Marković, the chairman of the opština represents, on the one

hand, an independent executive body of the opština; and on the

other hand, this official actually represents the opština (even

not being elected by the people), i.e. of the collegial executive

municipal body. In the first capacity, the chairman which

‘represents the opština’, proposes ways to settle the issues

resolved by the opština assembly, and directs and coordinates

the activities of the opština government. In the second

capacity, this official represents the opština council, convenes

and holds its meetings, being responsible for the legitimacy of

the activities of the council and therefore is obliged to suspend

the implementation of the decisions of the named council,

which, in his opinion, does not comply with the law (17).

The opština municipal council is the collegial executive

body of the assembly. It consists of the chairperson as well as

of the deputies, and members of the opština council, who are

elected for a period of four years by secret ballot by a majority

of the total number of councillor. Candidates for the municipal

council are nominated by the candidate for the opština

chairmen, however, as a rule; they represent the same party as

the candidate for the opština chairmen. When deciding on the

election of the chairman, the opština simultaneously decides

on the election of the members of the municipal council. The

composition of the opština municipal council may not include

more than 11 members; the chairperson is the co-president of

the council at the same time. The members of the opština

council cannot be councillors at the same time; they must deal

with one or several specific areas within the competence of the

assembly. At the same time, a councillor elected as a member

of the opština council loses his mandate. Opština council

members can exercise their powers on a recurring basis.

As for the powers of the opština municipal council as a

collegial executive body, the council submits the draft statutes,

budget and other adopted acts for the consideration of local

assembly; directly implements and ensures the implementation

of decisions and other acts of the opština assembly; supervises

(

3) established that it is not permissible by any agreement to

transfer the mandate to any political party and, accordingly,

the provisions of Article 47 of the Law, which provide for a

resignation blank, are incompatible with the Constitution and

ratified international treaties. Thus, the councillor could keep

the mandate even if the political party had expelled this

member, and even if this official leaves the political party on

the list of which he was elected. Finally, the 2011 Law on

Amendments and Supplements to the Law on Local Elections

provided that the councillor personally sends a notarized letter

of resignation to the chairman of the assembly of local

government unit within three days from the date of such letter

certification, and the chairman must address the issue of

resignation to the nearest regular meeting of the assembly,

which in fact made it impossible to apply the institution of the

‘

blank-resignation’ to the councillor.

In addition, the Law on Local Elections established earlier

that in case of pre-term loss of a mandate by a councillor, this

mandate was to be transferred to another electoral list

candidate at the party’s discretion. The Constitutional Court in

its IU-52/08 decision established, in particular, that the

mandate is transferred in accordance with the sequence of

indication in the electoral list. Therefore, in the current edition

of the Law on Local Elections, the mandate is transferred to

the first next candidate from the list of this party, who did not

receive a mandate when distributed according to the results of

municipal council elections. Whether the mandates obtained

by the political party are distributed among all listed

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2019, Volume 7, Issue 4, Pages: 631-640

the activities of the local council, annuls or invalidates acts of

the opština council that do not comply with the law, the charter

and other general acts or decisions adopted by the opština

assembly; makes a decision in the framework of the

administrative procedure of the second instance on the rights

and obligations of citizens, enterprises, institutions and other

organizations on administrative issues within the competence

of the initiative; appoints and dismisses the head of the

municipal board or, respectively, the head of the board of other

certain types of organizations. The chairman of the opština and

the municipal council regularly inform the opština assembly

on the own initiative or at the assembly request for the

execution of decisions and other acts of the opština assembly

So, with regard to civil initiative as a form of direct citizen

participation in the implementation of local self-governance, it

represents the right of citizens to make proposals to the

assembly of local self-government units for the adoption of an

acts regulating a specific issues within the competence of the

local self-government unit, as well as proposals for amending

charter or other acts. In addition, the institute of civil initiative

includes the right of citizens to initiate (by submitting a

proposal to the assembly) a local referendum in accordance

with the law and the charter of a local government unit. The

local assembly is obliged to hold a hearing on the above

proposals and submit a reasoned response within 60 days of

the proposal receipt. The charter of a local government unit

determines the number of signatures of citizens, ensuring the

validity of such civil initiative. At the same time, the Law

provides that such a number cannot be less than 5% of voters

(Part 3 of Article 68 of the Law on Local Self-Government)

(1).

The next form of direct participation of citizens in the

implementation of local self-governance is the citizens’

assembly. Thus, in accordance with Article 69 of the Law on

Local Self-Government, an assembly of citizens is convened

on the part of the territory of a local government unit

established by its charter (1). The procedure for convening an

assembly and its activities, as well as the method of

establishing the ‘group judgment’, is governed by the charter

and the decision of the local government unit. The assembly

of citizens by the majority of votes of those present accepts the

demands and proposals and sends them to the assembly or to

other bodies or agencies of the local self-government unit; the

agenda items under discussion are mostly related to the local

competence. In turn, the bodies and agencies of a local

government unit are obliged to consider the demands and

proposals of citizens’ assembly within 60 days and take a

certain position on the voiced opinion and, respectively, bring

a question to a decision or appropriate measure and inform the

citizens on the actions taken.

Another form of direct citizen participation in the

implementation of local self-governance is a local referendum.

Apart from the fact that the local assembly may appoint a

referendum on its own initiative and on the matters within its

competence, the assembly is also obliged to appoint a

referendum on the proposal submitted by at least 10% of voters

of the total number of voters in a local government unit, in the

manner prescribed by law and charter. The referendum

decision is adopted if voted by the simple majority, provided

that more than half of the total number of citizens participated

in the voting. At the same time, the decision adopted at a local

referendum is mandatory, and the assembly of a local

government unit does not have the right to cancel it or change

its content by making changes or amendments within one year

from the date such decision enters into force.

(

Article 48 of the Law on Local Self-Government) (1).

With due regard to the assembly system of the

arrangement of powers in the local self-governance of Serbia,

it is quite natural that with the termination of powers of the

local assembly, the executive mandate also become

terminated, despite the fact that the local bodies may continue

to carry out current duties within their competence until the

chairman or, respectively, the powers of ad hoc members of

the interim authority may be terminated by dissolution of the

assembly (Article 51 of the Law on Local Self-Government).

According to paragraph 5 of Article 66 of the Local

Government Law, the provisions of the Law governing the

status of the opština council apply to any city council (7,8).

The statute of the opština municipal administration had

significantly changed with the enactment of the existing Law

on Local Self-Government. Thus, under the current law, the

opština administration received the status of a special body of

local self-government and, as rightly pointed out by professor

Marković, of a bearer of the administrative function,

representing one of the executive functional levels of the

opština community (17). The opština council under its new

status drafts normative and other acts adopted by the local

assembly, its chairman and the council; executes decisions and

other acts of the opština assembly; make decisions in the

framework of the administrative process of the first instance

on the rights and obligations of citizens, institutions and other

organizations on administrative issues within its initiative

competency; conducts activities for the administrative

supervision of the implementation of normative and other

general acts of the opština assembly; executes laws and other

regulations, the execution of which is entrusted to the opština;

and finally, the opština council carries out expert and other

activities established by the opština assembly, its chairman,

and the council (Article 52 of the Law on Local Self-

Government) (1).

.3 Legal guarantees for local self-governance in the

republic of serbia

The most important guarantee for the implementation of

the right to local self-governance in the Republic of Serbia is

the opportunity of direct participation of citizens in the

exercise of the municipal powers; such opportunity is directly

stipulated by the Law on Local Self-Government (1). Thus, the

special chapter III of this Law provides such forms of direct

participation of citizens in the implementation of the powers

of municipalities as civil initiative, citizens’ assembly,

referendum, and community-based self-government, the

implementation of which is governed by both the law and the

charter of the local government unit.

A new form of participation of citizens of the Republic of

Serbia in the implementation of local self-governance is the

community-based

self-government,

creating

aerial

communities and other forms of territorial self-governance in

order to meet the needs and interests of the local population in

small settlements. As emphasized by professor Marković, in

contrast to the previous three forms, territorial communities

are a form of continuous participation of citizens in the direct

implementation of issues of common concern (6). As a rule,

such communities are created to meet the needs and interests

Journal of Environmental Treatment Techniques

2019, Volume 7, Issue 4, Pages: 631-640

of the local population, primarily in small settlements (one or

two or more). However, in accordance with Part 2 of Article

foreign partners still has certain limitations. Local government

units may cooperate in areas of common concern with the

relevant territorial communities and local government units of

other states within the framework of the foreign policy of the

Republic of Serbia, observing the territorial unity and the rule

of law of the Republic of Serbia in accordance with the

Constitution and the law. At the same time, such cooperation

is carried out exclusively with the consent of the Government

of the Republic of Serbia. Also, professor Stojanović draws

attention to the fact that, in order to ensure the interests of local

government units and their residents, the Law on Local Self-

Government provides for the right of local governments to

cooperate with NGO’s, humanitarian and other organizations

(15).

of the Law on Local Self-Government, territorial

communities may also be formed in urban settlements

neighborhoods, districts, etc.) (1). The decision on their

(

formation and their prospective territory (as well as on the

abolition of territorial communities) is made by the council of

a local government unit by a majority vote of the total number

of councillors, provided that previously received citizens’

opinion was properly expressed. As it was rightly pointed out

by professor Pajvančić, participation in the activities of the

territorial community is not a legal duty, but an opportunity

that citizens can take advantage of for the rational and effective

exercise of their rights and interests (9).

In accordance with the charter of the local government unit

and the constituent act of the territorial community, the acts of

the latter establish its activities, as well as its bodies and the

procedure for their election, organization and activity,

decision-making and other issues relevant to the activities of

the territorial community. In accordance with Article 76 of the

Law on Local Self-Government, the territorial community has

the status of a legal entity within the limits of the rights and

obligations established by the statute and the decision on the

formation (1). The funds necessary for the activity of a

territorial community or another form of territorial self-

governance are provided from 1) the budget of a unit of local

self-government; 2) donations; 3) income received by the

territorial community from its own activities. The territorial

community adopts a financial plan, which is approved by the

competent authority of the municipality.

Also noteworthy is the fact that by the decision of the

assembly of a local self-government unit, all or some territorial

communities may be entrusted with the implementation of

certain types of activities that are within the competence of the

municipality (with the corresponding provision of the funds

necessary for their implementation). The territorial

communities can arrange the activities of the municipal

government for the implementation of certain tasks related to

the competence of the immediate municipal government. The

above activities, as well as the order and place of their

implementation, are determined by the chairman of the local

government unit at the suggestion of the head of the council

A special place in the system of guarantees of the

implementation of the constitutional right to local self-

governance in the Republic of Serbia is occupied by its legal

protection; such protection of local self-governance at the

present time is ensured by several legal institutions. As

stressed by professor Marković, in two cases the protection is

carried out through state bodies, and in the other two - through

organizational mechanisms of local self-government (17).

First of all, this refers to the institution of protection of the

right to local self-governance in the Constitutional Court of the

Republic of Serbia (11). Thus, according to Part 2 of Article

193 of the Constitution and Article 95 of the Law on Local

Self-Government, the body provided for in the statute of a

local government unit has the right to institute constitutional

and legal verification proceedings on the constitutionality and

legitimacy of laws and other general acts of the Republic of

Serbia violated the right to local governance (1). Therefore, the

relevant local government is called upon to act only in the case

of violation of the right to local self-governance established by

the Constitution. At the same time, the Serbian constitutional

legislators have provided ‘blanket protection’ of local self-

governance from unconstitutional acts and actions of state

authorities and regional autonomy (15). Thus, according to

Part 1 of Article 193 of the Constitution, the body provided for

by the charter of a local government unit has the right to appeal

to the Constitutional Court of the Republic of Serbia if a

particular norm or act of a state body or local government body

impedes the exercise of the competence of the local

government unit (11).

(

Article 77).

So, the territorial community as a new form of direct

The institutions protecting the right to local self-

governance in the Republic of Serbia should also include the

activities of the local ombudsman. Thus, according to Article

97 of the Law on Local Self-Government, a local self-

government unit may provide for the position of a local

Protector of Citizens authorized to monitor the observance of

the rights of citizens to detect violations committed by acts,

actions or omissions of administrative bodies and public

agencies of local government unit. At the same time, two or

more units of local self-government may decide on the

establishment of the position of single Protector of Citizens.

Professor Pajvančić draws attention to the fact that the

definition of powers and the order of activities of the local

Protector of Citizens falls within the competence of the local

government unit and is regulated, as a rule, by its charter (9).

The Republic of Serbia is quite an innovator in solving the

issue of inter-ethnic relations at the local level. Thus, in

accordance with Part 4 of Article 180 of the Constitution of the

Republic of Serbia, the operation of the units of local self-

participation of citizens in the implementation of local self-

governance is a special type of self-organization of citizens

whose activities are aimed at a more rational and effective

exercise of civil rights and the satisfaction of their needs. At

the same time, professor Marković emphasized that the

territorial community is a type of self-organization of citizens

in units of local self-government, while such community itself

is not a unit of the territorial organization of the Republic of

Serbia (6).

One of the essential guarantees of compliance with the

right to local self-governance is the right of a local unit

provided for in the Law on Local Self-Government to

cooperate with local government units of the Republic of

Serbia, as well as with local government units and structures

of other states (1). Professor Marković aptly noted that the

presence of the above right is related to their self-governing

status (6). However, if cooperation with local government

units in the Republic of Serbia is unlimited, cooperation with

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2019, Volume 7, Issue 4, Pages: 631-640

government with a mixed ethnical structure and proportional

representation of national minorities in assemblies is provided

in accordance with the law. With this constitutional provision,

the constitutional legislators obliged the legislator to ensure

the proportional representation of ethnical groups in the local

government unit to protect their rights and vital interests

Decisions of the council for interethnic relations are taken by

consensus of its members; in exercising of its direct powers

the council operates in direct contact with the assembly of the

local government unit. Thus, the council notifies the local

assembly on its own position and proposals regarding the

solution of issues of ensuring ethnic groups’ equality; the

council should state its position on such proposals at the first

regular session, but no later than within 30 days. At the same

time, the assembly and the executive bodies of the local self-

government unit are obliged to submit preliminary drafts of all

decisions concerning ethnic groups’ equality to the council for

interethnic relations for the latter to express its position on the

above-mentioned projects. The significance of the council in

the system of bodies of local self-governance is quite clearly

demonstrated by the fact that the council received sweeping

powers to protect constitutionality, legitimacy, and also to

ensure the supremacy of the statute in the system of acts of the

local self-government unit. Thus, the Law on Local Self-

Government provided for the right of the council for

interethnic relations to initiate proceedings before the

Constitutional Court of the Republic of Serbia to verify the

constitutionality and legitimacy of a decision or other general

act of the local assembly if the council believes that such acts

directly violate the rights of persons belonging to the national

minorities or dominant ethnic group represented in the council

for interethnic relations. Moreover, the council is entitled

under the above conditions to initiate the proceedings in the

Supreme Court of Cassation of Serbia (14) to verify the

compliance of a decision or other general act of the local

government unit with its charter (Part 11 of Article 98 of the

Law on Local Self-Government) (1).

Another important guarantee of local self-governance in

the Republic of Serbia is the provision of paragraph 2 of

Article 12 of the Constitution, according to which the citizens'

right to local self-governance is subjected only to the state

supervision of constitutionality and legitimacy. The Republic

of Serbia can be represented in relations with local government

units by the Government, the Ministry of Public

Administration and Local Self-Government, or by another

competent ministry. As mentioned above, these bodies have

the right to implement six options for state intervention in the

affairs of local self-government, but solely for the purpose of

establishing constitutionality and legitimacy. As aptly noted

by professor Marković, this case refers only to such

constitutionality supervision but definitely not to the

mentoring of the state over local self-government (17).

(

which were also provided for in the Law on Local Elections).

In particular, this Law provides for the application of the

electoral threshold’ at the election of councillor to the

‘

assembly of a local government unit, i.e. the distribution of the

mandates of the councillor includes the electoral lists that

received at least 5% of the votes of the total number of

participated voters. The exceptions are the political parties of

national minorities and coalitions of such parties, which, in

accordance with paragraph 5 of Article 40 of the Law on Local

Elections, may participate in the distribution of mandates, even

if they receive less than 5% of the votes. According to the

above Law, a political party of national minority is considered

a political party whose main purpose is to represent the

interests of the national minority, as well as to protect minority

members in accordance with international standards. At the

same time, the decision on whether the bearer of the electoral

list has a status of a national minority political party or,

respectively, the coalition of political parties of national

minorities, is taken by the election commission of the local

government unit at the suggestion of the bearer of the electoral

list submitted during electoral registration (Part 7 of Article 40

of the Law on Local Elections).

Not of less importance from the point of view of the

protection of vital interests of national minorities in the

exercise of right to local self-governance are the provisions of

Section 98 of the Law on Local Self-Government, stipulating

the creation of council for interethnic relations as an

independent working body in local units with multicultural

population; the members of such councils include

representatives of the Serbs and national minorities. At the

same time, according to the Law, local self-government units

are considered multicultural if the representatives of at least

one national minority make up more than 5% of the total

population or representatives of all national minorities make

up more than 10% according to the last population census in

the Republic of Serbia. Also, both the Serbs and minorities

have the right to be represented in the council for interethnic

relations, if their number is more than 1% of the total

population of a local unit (Part 3 of Article 98). If the national

minority has its own elected national council in the local self-

government unit, then the representatives of this minority in

the council for interethnic relations are elected on the proposal

of the national council.

Conclusion

The Republic of Serbia ipso facto has abandoned the

The procedure for nominating and electing members of the

council for inter-ethnic relations should ensure equal

representation of the Serbs and national minorities, while

neither of them should have an overwhelming majority of

council members. The scope of authority, composition, the

election of members and the arrangement procedures of the

council for interethnic relations is governed by the decision of

the assembly of the local government unit; such decisions are

made by a majority of votes of the total number of councillors

of a local assembly in accordance with the charter.

socialist model of self-governance already in 1990; this model

was featured by the system of integral self-governance, under

which opština municipality, being an administrative-territorial

unit, had the status of a socio-political association. The new

Constitution of 2006 laid the foundation for modern local self-

governance in the Republic of Serbia. As a result, the present

local authority system in this state is based on the traditional

European concept of local self-governance, which is based on

the representative system, the separation of powers and the

right of citizens to manage local affairs. The Republic of

Serbia envisaged a single-stage local government with opština

municipalities as the territorial units; the cities represent

special additional units within the framework of this structure.

As the main activity, the council considers issues of

implementation, protection, and development of equality of

ethnic groups in accordance with the law and the charter.

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2019, Volume 7, Issue 4, Pages: 631-640

The creation, abolition or territorial changes of a local unit are

preceded by a consultative referendum on the territory of the

corresponding government unit. The territory within which a

local government unit is formed is a natural and geographical

integrity, economically connected and having a developed

system of communication between settlements and with a

single unifying territory center of local government location.

The main and highest legal act of a local government unit is a

charter adopted by an Assembly, which is a representative

body of local self-government. Along with the independent

powers, in the exercise of which municipalities enjoy full

autonomy in relation to the state, they also have powers

delegated by the Republic and regional autonomies. The Law

on Local Self-Government regulates in reasonable detail the

types and order of relations between the republican bodies and

bodies of local self-government units. In particular, the

authorities of the Republic oversee the constitutionality and

legitimacy of the activities and acts of the bodies of the local

self-government units in accordance with the Constitution and

the law; the latter provides for six options for the Republic to

intervene in the affairs of local self-governance, including the

dissolution of the assembly, but only for the purpose of

establishing constitutionality and legitimacy. In this case, the

law provides for the procedure for protecting the rights of local

self-governance from unconstitutional and illegal acts and

actions of state authorities and regional bodies (1).

As for the bodies of local self-governance in the Republic

of Serbia, with the departure from the socialist model, Serbia

turned to the classical model of local self- governance. At the

same time, the specifics of the Serbian system of local self-

governance in the early post-socialist period were featured by

the principle of supremacy of the highest official in the system

of local self-governance bodies, which assumed the direct

election of this official; this provision was also stipulated by

the Law on Local Self-Government of 2002 (1). However, the

adoption of the 2006 Constitution, which established the

Assembly as the highest body of local self-governance in

Serbia, accomplished the transition to a model based on the

principle of supremacy of the Assembly. It is the local

Assembly that currently forms the executive bodies of local

self-government, which include the chairman of the opština

rights to local self-governance in the Supreme Court and the

Constitutional Court of Serbia, as well as the activities of local

ombudsmen in the territory of local government units; and

finally, the statutory restrictions of interference in the activities

of the local self-government on the part of public authorities.

All the above guarantees fully comply with the requirements

of the European Charter of Local Self-Government. At the

same time, the sub-institute for the protection of the rights of

national minorities as a component of the institution for the

protection of the right to local self-governance in the Republic

of Serbia is meant to be recognized as truly innovative.

Summing up the conducted research, it can be stated with

confidence that modern Serbian constitutional regulation, on

the one hand, revived the traditions of local self-governance

laid down by the 1888 Constitution of the Kingdom of Serbia,

and on the other hand, it fully complies with the demanding

requirements imposed by the 1985 European Charter of Local

Self-Government

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Constitutional Court decision № IU-52/08 / Official Gazette RS

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same as mayor in the cities) and the opština council (same as

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of the assembly, the powers of the executive bodies of the units

of local self-government are also suspended. Modern

legislation on local self-governance has qualitatively changed

the status of local self-government. Thus, under the current

law, the local self-government received the status of a special

body exercising a number of administrative powers, being

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‘

one of the levels of the executive system in local government

units’ (6).

The most important issue, which largely characterizes the

position of local self-governance in the state, is its protection

both as an institution of democracy and as a human right. At

the present stage, the constitutional legislation of the Republic

of Serbia provides a wide range of guarantees: a number of

forms of direct citizen participation in the implementation of

local self-governance; the right to cooperate between local

self-government units (including the freedom of association to

achieve common interests); the institution of protection of