Report on the situation of local democracy in the Republic of San Marino - CPL (6) 4 Part II

Rapporteur: Mr Manueco Alonso (Spain)

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EXPLANATORY MEMORANDUM

I. Introduction

The Congress of Local and Regional Authorities of Europe (CLRAE), which is a Council of Europe body, decided to prepare a report on the situation of local democracy in the Republic of San Marino for its plenary session in June 1999. For this purpose, a CLRAE delegation visited the country on 25 and 26 February 1999 in order to carry out research and gather first-hand information on the current position of local authorities and local democracy in the Republic. The delegation was composed of Mr Jesus Mañueco, Chair of the Palencia Provincial Delegation (Spain) and member of the Spanish delegation to the CLRAE, accompanied by Mr Antonio Luis Hernandez, Secretary General of the Spanish Federation of Municipalities and Provinces, Mr Guiseppe Tessari, a Council of Europe official and member of the CLRAE Secretariat, and Mr Angel Manuel Moreno Molina¹, who assisted the rapporteur as an independent expert in the preparation of this report.

During its visit (the programme is given in Appendix I), the delegation met several leading figures in San Marino political circles, the government, parliament, the judiciary and local authorities. During these meetings, a wide range of topics concerning the structure, functioning and future of local authorities in San Marino was discussed.

This report is therefore based on: (a) oral information from the persons met by the delegation; (b) political and legal documents provided by the San Marino authorities and from other sources; (c) other relevant legal reference works, a list of which is given in Appendix II; (d) previous work carried out by the CLRAE's staff in the context of its activities and relations with the San Marino authorities. This report does not claim to be an exhaustive analysis of local democracy in San Marino (a task that would require much more time and resources), but a general description of its basic features and the current political, legal and institutional context.

II. Present organisational structure of local authorities in the Republic of San Marino

The Republic of San Marino has traditionally been a highly centralised state². The various local authority reforms that resulted in the present situation did not begin until 1925. The law of 16 March 1925 (No. 16) was the basis for the first major reform of the country's territorial organisation: San Marino is divided into ten castelli (municipalities); the Regent of the Republic appoints a capitano (mayor) to head each castello and act as his representative. Other provisions followed, such as the laws of 17 November 1945 (instituting collegial administration within the local executive organs, with the creation of "auxiliary assemblies"), 25 October 1973, 30 November 1979 (instituting a democratic system for electing local officials) and 10 November 1980, the decree of 12 February 1990 (endorsing changes to the legislative provisions on the giunte di castello), and finally the law of 24 February 1994 (No. 22). The last-mentioned text, which sets out the current basis for local democracy in San Marino, defines the castelli as centres of population with their own identity, situated within the limits of a defined territory the borders of which broadly correspond to those of the historical castelli. Each castello is administered by a giunta di castello, a collegial body elected by its inhabitants and headed by a capitano elected for a five-year term. On the basis of this law and the other related texts, and on the accounts and documentation collected by the CLRAE delegation, the organisational structure of local authorities in San Marino may be described as follows.

a. Democratic appointment

The democratic nature of the local institutions is fully respected. As mentioned above, the law of 30 November 1979 instituted democratic elections for local officials, and this system has since been extended and consolidated. In particular, the 1994 law introduced a series of important innovations in this regard: a) the capitano di castello is elected by direct suffrage on the simple majority system: the person who heads the list obtaining the most votes is appointed capitano; b) as for the members of the giunta di castello, the list that obtains the most votes takes the majority of seats, and the remaining seats are distributed among the other lists using the Hondt system. The 1994 law regulates all the details of the electoral process and sets forth the powers of the capitano and the giunta di castello.

b. Powers

The powers of the giunte di castello and the capitani are established by the law of 24 February 1994 (Art. 20 et seq.) and by the implementing texts. Under these provisions, the giunte di castello do not, strictly speaking, have decision-making powers or competency in certain specified areas of activity, as is the case in several European states. Whilst they do not have decision-making powers in the technical sense, they nevertheless participate in the administrative process by drawing up reports or preparing opinions (pareri) on various issues (opening of premises or plants, urban development, etc), the final decision being taken by the central authorities. In general, these reports and opinions have purely consultative status. In a few cases, for example travelling markets, the central authorities are obliged to comply with the parere.

In addition, the giunte di castello submit and forward requests from citizens to the relevant central body (usually the State Secretariat concerned).

Finally, the giunte di castello have the right of legislative initiative under Art. 25 of the law of 24 February 1994 and Art. 24 of the law of 11 March 1981 revising the rules of the Consiglio Grande e Generale (Grand General Council), and may propose that referenda be held. However, the CLRAE delegation was told that the giunte di castello had so far never submitted an initiative of this kind.

c. Assets and property

The giunte di catello have no property of their own. All public assets belong to the state: the giunte do not own any assets, not even the buildings in which they are housed.

d. Local finances

In the absence of an independent taxation system, the giunte di castello have no resources of their own. Their income is derived exclusively from transfers from central institutions. Each year, the state transfers part of its budget (about 500 million lira) to the giunte, which then redistribute this amount according to their needs or the size of their castello.³ Using these allocated funds, each giunta may undertake limited work and reforms within its territory. A very small part of the state budget is thus administered in a decentralised manner, as each giunta enjoys autonomy in decision-making with regard to the work to be done (public works, reforms, building work, etc). Even so, the guinte themselves do not enter into contracts with outside companies but must contact the independent state-owned production company. For larger-scale operations or projects that cannot be covered by the allocated funds (such as the construction of a school), the giunte are entitled to submit a request to the central authorities, who take the overall needs of the country into account in deciding what action to take on it.

e. Staff

The giunte di castello have no staff of their own: there are no local civil servants or police officers. In the majority of cases, the capitani and the giunta members carry out their tasks with a high degree of selflessness. Under Article 31 of the law of 24 February 1994, neither capitani nor giunte members receive a fixed salary. They receive an allowance only when they take part in giunte meetings. The delegation was informed that these allowances totalled 500,000 lira per month, or 80,000 per giunta member.

f. Entitlement to take part in court proceedings and to bring legal proceedings

Given their distinctive legal status, the giunte di castello are not entitled to appeal against government decisions (by the Congresso di Stato, the Congress of State) to a higher administrative authority. At the same time, the decisions of the Consiglio Grande e Generale are not subject to judicial review. In short, the giunte di castello and the capitani have no legal remedies against potentially harmful acts and decisions by the central institutions. During the meeting between the CLRAE delegation and the San Marino judges, the latter said that the giunte were not empowered to lodge an appeal when the central institutions adopted a decision without taking account of their opinion, but that the citizens of a castello could however do so. In the absence of a right of appeal for the giunte, the only possibility was a sort of "constitutional conflict", which would have to go before the Captain Regents. However, although the legislation was not very clear on this point, the judge-made nature of San Marino law meant that in specific cases the giunte could initiate proceedings by suing for damages in criminal proceedings, for example if industrial establishments caused excessive pollution or contamination in the castello. In any case, the judges whom the delegation met said that the giunte were not at present parties to any pending case, either civil or criminal.

g. Civic participation

For reasons that are clearly related to its size and the proximity of the state institutions, the territorial set-up of San Marino facilitates civic participation: the system as a whole is distinguished by its direct, participatory nature. The local representatives whom the delegation met stressed repeatedly that the giunte di castello⁴ provided a forum for democratic civic participation. Giunta meetings are open to the public and an information bulletin is distributed regularly to inform all families of the decisions taken in the castello.

This participatory element is not restricted to the "local" sphere: it is also present in the central institutions, through arrangements that afford citizens direct contact with them. For example, citizens can submit individual or collective petitions to the Consiglio Grande e Generale through the Arengo, an institution governed by the law of 24 May 1995. The system of popular initiative, expressly provided for in San Marino legislation, is regulated by Articles 33 and 34 of the law of 28 November 1994, which requires only that the proposals be signed by at least sixty citizens. In addition, the capitani meet the Captain-Regents (the heads of state) every six months.

In view of the above, it can be concluded that the giunte di castello are not "local entities enjoying autonomy" in the sense understood in many European countries or in the ECLSG. Article 22 of the local government law of 24 February 1994 states that "the giunte di castello shall exercise the powers and functions of deliberation, consultation, encouragement, supervision and management of local services". In addition, the giunte are not, strictly speaking, entities enjoying legal personality, empowered to take binding administrative decisions or invested with wide decision-making powers. They form an intermediate category, somewhere between a simple department and an entity with full legal personality and capacity.

In addition to their consultation functions and the executive administration of public services, the giunte act as intermediaries and channels of civic participation. In practice, the task of managing and running public affairs is almost totally carried out by the central institutions, who take decisions concerning community life. Town planning, which is governed by a single land-use programme for the whole of the Republic's territory ("piano regolatore"), is a good example.

III. Evaluation of the current system by the state authorities and perspectives for change

Turning to how the Republic's authorities judge the current local authority system described briefly in the preceding section, it should immediately be stated that, as for most laws in most countries, opinions are divided on the 1994 law. Nevertheless, throughout its discussions and meetings, the CLRAE delegation had the impression that the local representatives were generally satisfied with the status quo, while at the same time hoping for and recommending a number of improvements. Few were in support of radically overhauling the system. During the meeting with them, the capitani of the ten castelli claimed not to have any major problems in their respective constituencies. In addition, on several occasions our interlocutors said they were torn between two contradictory attitudes: a) on the one hand, the fact that San Marino is a member of the Council of Europe is perceived as a strong incentive to sign and ratify the ECLSG; b) on the other hand, the country's actual situation leads to a certain scepticism about the desirability, scope and effectiveness of such a step. Some local officials argue in favour of signing the ECLSG; others ask that the reports by the giunte be made binding in certain cases; still others wish to acquire more powers in such matters as traffic, town planning, industrial and commercial establishments and the environment. In any case, all of them admit that the giunte are recent structures which are not yet firmly rooted in San Marino's traditions. On the whole, therefore, the 1994 reform is viewed positively, and it is hoped that the current debate will result in a strengthening of local self-government, without compromising the full implementation of this law's potential.

With regard to future prospects, the law of 24 February 1994, as has been said, represents the most recent innovation in San Marino's local law. However, the situation does not appear to be set in stone: in fact, the CLRAE delegation was able to observe that the organisational structure established by that law is being analysed and considered within various fora and from different angles.

In the first place, it should be mentioned that, under the law of 21 March 1995, the Consiglio Grande e Generale decided to set up a special committee on institutional reforms (Commissione consiliare speciale per le riforme istituzionali), which was instructed to analyse critically all the Republic's institutions. This committee began its work on 7 January 1997 and officially completed it on 19 January 1998. The results have been compiled in a voluminous final report (Relazione finale), which considers practically all the Republic's institutions one by one and contains conclusions and proposals. The giunte di castello were consulted as part of this process of examination and analysis, which also covers local authorities. Briefly, the conclusions of the final report (p. 34) state that "with regard to the giunte di castello, the Committee believes it is appropriate for them to be given greater powers and a broader sphere of competence, particularly in the field of the environment… the Consiglio Grande e Generale should assess the possibility of granting them greater autonomy and greater powers in sectors determined at the outset by the giunte di castello".

In parallel with the Special Committee's ambitious undertaking, the CLRAE delegation observed that local institutions generally remain a current political issue (this point was emphasised several times by its interlocutors). Furthermore, there is a government plan, as yet unclear, to reform these bodies. Whatever happens, this reform will not be implemented before June 1999, when elections to three of the giunte are due to be held.

With regard to signature of the European Charter of Local Self-Government, the CLRAE delegation observed wide differences of opinion concerning its practicability and appropriateness, and the date on which it could take effect. In substance, it seems that signature is, at best, a long-term objective. The delegation was frequently told that San Marino's particular features, namely the country's small size and population and the existence of the castelli, meant that signature and/or ratification of the Charter was neither practicable or realistic.

Finally, the idea of setting up an association of castelli was welcomed by San Marino's delegation to the CLRAE.

IV. Conclusions

The giunte di castello, chaired by the capitani, represent a new stage in the institutional development of local democracy in San Marino. However, these bodies are institutionally weak, are responsible for the decentralised management of a tiny proportion of public resources, participate on a consultative basis in several fields and act as interfaces (as well as intermediaries) between citizens and the central institutions. The giunte do not constitute local self-government in the political sense of the term, but enjoy a small margin of intervention in public affairs, limited to executive and management functions. In the light of the above, it can be concluded that the current organisational structure of San Marino is far removed from genuine "local self-government", at least as the concept is defined in certain European countries or in the ECLSG.

On the other hand, in any analysis and evaluation of local self-government and democracy in San Marino, it is essential to bear in mind the Republic's very small area (60 km²), the small number of residents (about 26,000) and the particular institutional features that make it a special case, without equivalent in comparative law. In this context, the creation of two distinct territorial levels (national and sub-national, both endowed with autonomy) presents considerable difficulties from the political, technical, operational, economic and administrative points of view.

Whatever the case, there seem to be no constitutional barriers to developing and consolidating a local system that is currently in its infancy by extending the powers of the giunte di castello in areas that are important to the local communities. It is legally possible, and should be politically possible, to find a balance such that, without ignoring or abandoning this historic republic's special features, and in parallel with the considerable progress made in democratically appointing local officials, other aspects of San Marino's local government structures can also be aligned more closely with the principles that prevail in neighbouring countries and that inspired the European Charter of Local Self-Government, by strengthening the profile and institutional weight of the giunte di castello.

APPENDIX I

Visits and official meetings organised during the CLRAE delegation's mission to San Marino

APPENDIX II - Principal texts consulted

- "Relazione finale della Commissione consiliare speciale per le riforme istituzionali", Consiglio Grande e Generale di San Marino, 1998.

- Renzo Bonelli: Gli organi dei poteri pubblici nell'ordinamento della Repubblica di San Marino, 1984

- Segretaria Esecutiva del Congresso di Stato: "Dalle Gualderie alla Comunità Locale", 1994

- Selezione di leggi sull'ordinamento della Repubblica ad uso concorsi pubblici (aggiornata al giugno 1998). Segretaria Esecutiva del Congresso di Stato.

Francesco Balmiselli: Elementi di Diritto pubblico sammarinese, San Marino, 1996.

APPENDIX III - Letter of 23 April 1999 sent to the secretariat by Mr Antonio Gasperoni, Minister of State for relations with the giunte di castello

I was pleased to receive the draft report prepared by Mr Mañueco Alonso after the CLRAE delegation’s visit on 25 and 26 February, which is to be tabled for discussion on 16 June, at the plenary session.

The report shows a good grasp of the particular nature of our ancient “little” Republic, which - as the delegation pointed out - cannot be compared to other, much larger nations with radically different institutional characteristics.

Experience with the law of 24 February 1994 (No 22) on the “giunte di castello” [municipal collegiate bodies] - an innovative and effective piece of legislation in many respects - has demonstrated its limits.

Comprehensive legislation has therefore been under consideration for some time, with the help and co-operation of the “giunte di castello”.

Allow me to congratulate you once again on your excellent work.

Yours sincerely,

Antonio Gasperoni

² For a study of the historical development of local authorities in San Marino, see Segretaria Esecutiva del Congresso di Stato: "Dalle Gualdarie alla Comunità Locale", 1994.

³ It should be noted that the castelli are dissimilar. For example, the castello of Serravalle has a population of 4,800, the town of San Marino has 5,000, while the castello of Monte Giardiano has only 700 residents.

⁴ Foreign residents, even those who have been living in the country for a long time, cannot participate in local elections and, naturally, are not eligible for election. On 30 September 1998, 4,000 residents out of a total population of 26,195 in San Marino, were foreign.