This report follows the first monitoring visit to the Republic of San Marino since it ratified the Charter in 2013. Before that date, the situation of local democracy in the Republic of San Marino had already been the focus of Recommendation 63 (1999) adopted by the Congress in June 1999.
The report welcomes the recognition of the legal personality of the township councils and of their right to recourse to judicial remedies. The rapporteurs similarly welcome the establishing of the joint session of Township representatives.
They highlight however several areas of concern which need to be addressed by the government of San Marino, notably with regard to limited competences and decision-making powers of municipalities as a result of the concentration of nearly all public responsibilities at the central level.
In the same vein, the rapporteurs underline that local authorities’ limited autonomy, inadequate financial resources and the lack of own professional staff do not permit them to perform their duties appropriately. Lastly, legally established consultation mechanisms and procedures are not effectively implemented and there is no established association of local authorities in San Marino.
Consequently, the Congress recommends a series of measures to San Marino to bring local self-government in line with the principles and requirements of the Charter and welcomes the launching of a reform process to achieve this goal.
Lastly, the government of San Marino is called on to consider signing and ratifying the Additional Protocol to the Charter on the right to participate in the affairs of a local authority.
The principle of local self government shall be recognised in domestic legislation, and where practicable in the constitution.
The principle of local government is not explicitly recognised in the constitution of San Marino. However, there is a provision in the Declaration on the Citizens’ Rights and Fundamental Freedoms which seems to include safeguards for the benefit of local government: According to the last paragraph of Article 3: “Each power of the State shall act in the mutual respect for their autonomy and competence” Furthermore, in Article 16 of this Declaration, township councils are explicitly mentioned among the parties which can file a request with the Guarantors’ Panel for the verification of the conformity of laws with the Constitution: Art. 16...”The Guarantors’ Panel shall: a) verify the conformity... [..] upon direct request...[..} five township councils..”
The principle of local government is explicitly recognized in Law No. 127 of 27 September 2013. Notably, Article 1 para. 2 of this law defines the township as an “institutional and territorial entity to which the law confers legal personality and administrative, representative and consultative functions”.
San Marino complies with Article 2 since the principle of local government is explicitly recognized in domestic legislation. Nevertheless, an explicit constitutional recognition of this principle would certainly upgrade the position of local government in this country and bring the legal status of local government closer to the spirit of the Charter, particularly in view of the possibilities for fostering judicial protection of local government through the Guarantors’ Panel (see also below Art. 11 of the Charter.
Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.
Taking into consideration the very small size of the country and the proximity of the state authorities to the citizens, it is obvious that local government in San Marino cannot have the range of responsibilities that is appropriate in other countries. This cannot mean, however, that local authorities should barely have any decision-making responsibilities. This seems, unfortunately, to be the case in San Marino: In this respect, very little has changed since the last Congress information report on San Marino (1999), when the rapporteur stated that the townships: do not “...have decision-making powers or competency in certain specified areas of activity... they nevertheless participate in the administrative process by drawing up reports or preparing opinions (pareri) on various issues (opening of premises of 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”.
Today Art. 22 of Law No. 127/2013 stipulates that the Council decides autonomously, within the limits of its annual budget, on: interventions of a humanitarian or social solidarity nature; financing of cultural, recreational, sporting and social initiatives, also in collaboration with other entities, institutions, institutes and associations, public and private; design and construction of public works as specified in Article 28 and Article 32 (green spaces and parks; maintenance of local roads, street lighting and paths by the state public works entity AASLP, and in emergency situations, also by private companies after decision of the Mayor (“Capitano”) The Councils are also responsible for co-ordinating cultural, recreational and social initiatives in their township and facilitating collaboration between the various operating agents in their territory. Social centres which benefit from state funding co-operate with the township councils on the basis of an annual schedule based on the joint agreement between the Councils and the responsible Secretary.
Furthermore, according to Art. 23 of the same law, the township councils submit binding opinions on travelling trade and issue directives on the organization and operation of markets and on the establishment of businesses in the case of a disruption in the supply of goods.
The democratic legitimacy of local government bodies is ensured through the direct election of Mayors (Capitani) and Councillors. As already mentioned, 22,172 voters were registered for the last municipal elections in 2014. The total population of the Republic is approximately 33,000 inhabitants, of whom nearly 5,000 (more than 15%) are foreigners, mostly Italians. The Republic of San Marino has not ratified the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority. The Republic of San Marino should be encouraged to ratify the Additional Protocol on the right to participate in the affairs of a local authority.
The ratification of the Additional Protocol is made easier by the fact that the Republic of San Marino has already developed a wide range of institutes of direct democracy, including direct accountability to the citizens (“Instanza d’ Arengo”), legislative initiative by citizens (Art. 30 of Law No.1 of 29. May 2013) and the three different types of referendum procedures (referendum propositivo o di indirizzo, referendum confermativo, referendum abrogativo). Furthermore, the small size of the country and the small size of local authorities (only the biggest municipality, Serravalle, has more than ten thousand inhabitants) would further facilitate the introduction of additional participatory institutions
The rapporteurs conclude that there is a formal compliance with Article 2 of the Charter since the principle of local government is recognized in domestic legislation. In addition, Article 3 paragraph 2 is respected in San Marino, since the bodies of the townships are directly elected. There is also a strong institutional arsenal of instruments and procedures promoting direct democracy. The rapporteurs would therefore encourage further development of participatory institutions at local level, including the introduction of municipal voting rights for foreign residents in San Marino.
It should be noted that the townships still have very few decision-making powers. The law of 2013 bypassed this enormous deficit of municipal competence which cannot be overlooked because of the well-known particularities and the size of the country. Eighteen years ago, Recommendation 63 (1999) stated that there seemed to be no constitutional or political barriers to consolidating a local government system that includes municipal competence in areas that are important to the local communities. Unfortunately, the laws still prevent the townships from regulating and managing local affairs such as basic local infrastructure and services that belong to the standard repertoire of municipal competences in all European countries. The rapporteurs therefore conclude that Article 3, paragraph 1 is not respected in the Republic of San Marino.
This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.
Consult reply indicated at article 3.1
The basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute. However, this provision shall not prevent the attribution to local authorities of powers and responsibilities for specific purposes in accordance with the law.
In San Marino, the basic responsibilities and tasks of local government are prescribed by law (Art. 4 paragraph 1 of the Charter). The legislation of the country does not however include a general competence (Art. 4 paragraph 2 of the Charter) for townships (Art. 1 paragraph 2 of Law 127/2013 cannot be interpreted in that sense, since it refers only to the “territory”, not to “affairs” thereof and to a corresponding competence of townships).
Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority.
In San Marino, the basic responsibilities and tasks of local government are prescribed by law (Art. 4 paragraph 1 of the Charter). The legislation of the country does not however include a general competence (Art. 4 paragraph 2 of the Charter) for townships (Art. 1 paragraph 2 of Law 127/2013 cannot be interpreted in that sense, since it refers only to the “territory”, not to “affairs” thereof and to a corresponding competence of townships).
The current situation in San Marino is also incompatible with Article 4 paragraphs 3 and 4: Public responsibilities are not exercised, in preference, by those authorities which are closest to the citizen (Art. 4. Paragraph 3). On the contrary, nearly all public responsibilities are exercised by the central state authorities. In San Marino there are certainly well-founded considerations for exercising many public responsibilities at the level of the state, since this country is very small and there are overriding considerations of efficiency and economy. After all, efficiency of public administration is also a constitutionally enshrined principle (Art. 14 paragraph 1 of the Declaration). However, this does not offer sufficient grounds for concentrating nearly all public responsibilities at the level of the state and excluding municipalities from decision-making powers (apart from a very small number of exceptions). Finally, even the extremely restricted powers of local government are not full and exclusive (Art. 4 paragraph 4 of the Charter).
As regards the right to be consulted (Art. 4, paragraph 6, Art. 5 and Art. 9, paragraph 6 of the Charter), domestic legislation includes a series of consultation procedures which have already been analysed in other parts of this report (see above). For instance, the Captains Regent, at the beginning of their term of office, meet the Mayors of the townships (Art. 29: “Conferenza dei Capitani di Castello”). There is a procedure of consultation for the state budget (Art. 24 of law 127/2013), a procedure of consultation for public works (Arts. 31 and 32 of the law), there are several consultative tasks and obligations (e.g. submitting an opinion within 30 days whenever requested to do so by the relevant public service (Art. 23 paragraph 5 of the law) and there is also the obligation of public administration services to respond to requests from the townships within 90 days (Art. 25 of the Law).
During the monitoring visit, however, several interlocutors from the townships complained that these rules and procedures were not respected. In fact, public offices do not answer within 90 days (actually, they usually do not answer at all) and the procedure of the public works’ list is not implemented according to the law. A Mayor complained that she had been asking the state authorities to do something to repair a ramp for disabled persons in front of her town hall for more than a year but nothing had happened and she hadn’t even received an answer to her written query. In the township of Borgo Maggiore, the interlocutors said that this year, the mayors decided not to prepare a list of public works in June in accordance with the law and instead held a press conference to against the persistent practice of central government of ignoring the list and the proposals of the townships. Many mayors are allegedly tired of reiterating exactly the same problems and claims every six months to every new pair of Captains Regent who receive them when they take up office.
Some ministers challenge these claims by the townships. For instance, the Minister of Territory, Environment, Agriculture, Tourism and Civil Protection stressed the fact that the Mayors of townships meet every month for consultation (Art. 30: “Consulta delle Giunte di Castello”) and they invite representatives from the responsible Ministries and other public offices who participate in these meetings. Furthermore he emphasized that the local Capitano (Mayor) is a member of the Environment Committee in his own Ministry, with the right to vote. The Committee Chair is the Minister himself and he allegedly always consults the Mayor first when a local project is coming up for discussion. If the Mayor rejects the project, the Ministry’s plan is suspended.
To sum up, the rapporteurs conclude that San Marino does not comply with Article 4 paragraph 2 (general competence), 3 (subsidiarity principle and exercise of public responsibilities closer to the citizen) and 4 (full and exclusive powers of local authorities). In addition, the rapporteurs are concerned about the implementation of consultation procedures, which are quite developed in the legal framework but do not seem to be implemented accordingly, in many cases. The rapporteurs therefore conclude that there is partial compliance with Article 4 paragraph 6.
Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.
Consult reply indicated at article 4.2
Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law.
Consult reply indicated at article 4.2
Where powers are delegated to them by a central or regional authority, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions.
Consult reply indicated at article 4.2
Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly.
Consult reply indicated at article 4.2
Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute.
Changes in boundaries and amalgamations do not come into consideration in the old Republic of San Marino, where these borders and these townships have grown historically.
Without prejudice to more general statutory provisions, local authorities shall be able to determine their own internal administrative structures in order to adapt them to local needs and ensure effective management.
San Marino municipalities do not have their own professional staff. Municipal operation is based on the civic engagement of the elected politicians and of the citizens as a whole. However, the small size of the country and of the townships is no excuse for the absence of professional staff. Therefore, San Marino does not comply with Article 6 of the Charter.
The conditions of service of local government employees shall be such as to permit the recruitment of high-quality staff on the basis of merit and competence; to this end adequate training opportunities, remuneration and career prospects shall be provided.
Consult reply indicated at article 6.1
The conditions of office of local elected representatives shall provide for free exercise of their functions.
Mayors and councillors in San Marino enjoy the free exercise of their functions. The law also provides for the remuneration of councillors for each session (35 Euros), the Mayor (an additional 200 Euros) and the Secretary (an additional 100 Euros ), a council member elected as secretary from among the members of the Council (Art. 21 of the Law 127/2013). During the monitoring mission, the interlocutors complained to the rapporteurs that there were not sufficient provisions for special leave and social security, especially for the Mayors and the Secretaries who “do not simply do a full time job, but offer a 24 hour-service”.
In fact, Art. 35 of Law No. 127/2013 also provides for special leave for elected persons (“Permessi Speciali”), but the rapporteurs nevertheless suggest that more generous provisions be introduced offering leave and contributions (or parts thereof) to the Mayors and the Secretaries of the Townships.
The rapporteurs conclude that San Marino complies with Article 7 of the Charter.
They shall allow for appropriate financial compensation for expenses incurred in the exercise of the office in question as well as, where appropriate, compensation for loss of earnings or remuneration for work done and corresponding social welfare protection.
Consult reply indicated at article 7.1
Any functions and activities which are deemed incompatible with the holding of local elective office shall be determined by statute or fundamental legal principles.
Consult reply indicated at article 7.1
Any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute.
Up to now, no system of state administrative supervision has been developed in San Marino, except for financial auditing by the respective bodies. In view of this legal and administrative reality, the rapporteurs conclude that there are no problems concerning the compliance of San Marino with Article 8 of the Charter.
Any administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities.
Consult reply indicated at article 8.1
Administrative supervision of local authorities shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect.
Consult reply indicated at article 8.1
Local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law.
Consult reply indicated at article 9.1
For the purpose of borrowing for capital investment, local authorities shall have access to the national capital market within the limits of the law.
As already mentioned in previous parts of this report, the Republic of San Marino declared that it was not bound by Article 9, paragraphs 3 and 8 of the Charter. Furthermore, San Marino made an interpretative declaration that: “….Article 9 of the Charter must be interpreted as an Article establishing a general principle of financial autonomy, according to which local authorities are entitled to freely dispose, in the framework of the national economic policy, of the resources allocated to them for the exercise of their powers”.
As far as possible, grants to local authorities shall not be earmarked for the financing of specific projects. The provision of grants shall not remove the basic freedom of local authorities to exercise policy discretion within their own jurisdiction.
Consult reply indicated at article 9.1
Local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them.
Consult reply indicated at article 9.1
The protection of financially weaker local authorities calls for the institution of financial equalisation procedures or equivalent measures which are designed to correct the effects of the unequal distribution of potential sources of finance and of the financial burden they must support. Such procedures or measures shall not diminish the discretion local authorities may exercise within their own sphere of responsibility.
Consult reply indicated at article 9.1
Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate.
As already mentioned in previous parts of this report, the Republic of San Marino declared that it was not bound by Article 9, paragraphs 3 and 8 of the Charter. Furthermore, San Marino made an interpretative declaration that: “….Article 9 of the Charter must be interpreted as an Article establishing a general principle of financial autonomy, according to which local authorities are entitled to freely dispose, in the framework of the national economic policy, of the resources allocated to them for the exercise of their powers”.
Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.
As already mentioned in previous parts of this report, the Republic of San Marino declared that it was not bound by Article 9, paragraphs 3 and 8 of the Charter. Furthermore, San Marino made an interpretative declaration that: “….Article 9 of the Charter must be interpreted as an Article establishing a general principle of financial autonomy, according to which local authorities are entitled to freely dispose, in the framework of the national economic policy, of the resources allocated to them for the exercise of their powers”.
This “interpretative declaration” gives rise to the question whether parties to the Charter can make such declarations with regard to any matter of interpretation. The rapporteurs are of the opinion that Article 13 offers the possibility to specify the categories of local authorities to which it intends to confine the scope of the Charter or which it intends to exclude from its scope. Furthermore Article 16 of the Charter offers the opportunity of a territorial clause for states who wish to specify the territory or territories to which this Chapter shall apply. A possibility of such “interpretative declarations” is not explicitly provided for in the Charter, but it is not unusual in international practice, even though such interpretative declarations are neither explicitly foreseen as such by the Vienna Convention (1969, Art. 2). In effect, this interpretative declaration is almost a reservation, since the kind of “general principle of financial autonomy” it implies would simply mean that the authorities are free to dispose of the resources “given to them”.
In San Marino, the resources given to the municipalities are barely worth mentioning. For instance, the annual budget for one of the biggest townships does not exceed 14,000 euros. However, Art.9 paragraphs 3 and 8 are not ratified and taking into consideration the interpretative declaration of San Marino, the authorities of San Marino are not committed by these provisions.
The financial systems on which resources available to local authorities are based shall be of a sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks.
Consult reply indicated at article 9.1
Local authorities shall be entitled, in exercising their powers, to co-operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest.
As already mentioned, townships can discuss issues relating to their own interests during a Joint Session of township representatives (the Mayors), established by Article 30 of Law No. 127/2013 (“Consulta delle Giunte di Castello”). They can submit proposals and legislative initiatives to the Congress of State. The participants in this session appoint a spokesperson by absolute majority for one year, with a possibility of renewal, as long as his/her mandate as Head of a township council is still running. The current spokesperon is the Mayor of Serravalle, Vittorio Brigliadori, and the Heads of the township councils therefore meet regularly at the Serravalle City Hall.
This session is an important institution of inter-municipal cooperation and coordination, but it is not an association with legal personality. Furthermore, it seems that international cooperation could be further regulated and encouraged.
The rapporteurs have come to the conclusion that San Marino partly complies with Article 10.
The entitlement of local authorities to belong to an association for the protection and promotion of their common interests and to belong to an international association of local authorities shall be recognised in each State.
Consult reply indicated at article 10.1
Local authorities shall be entitled, under such conditions as may be provided for by the law, to co-operate with their counterparts in other States.
Consult reply indicated at article 10.1
Local authorities shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation.
Since Law No. 127/2013 grants the status of a legal person to the Townships, these institutions can be the challenging or opposing party in any judicial dispute. After the constitutional reform of 2002 and the establishment of the Collegio Garante, the township councils (at least five out of nine) are granted the power to challenge an ordinary law before the Collegio with a view to constitutional review. Furthermore, according to Art. 16 of the Declaration, the Collegio Garante has jurisdiction regarding disputes of competence between “constitutional bodies”. This provision can be interpreted as referring not only to the bodies of the central authorities but also to the local entities. However, as no case has so far arisen before the Collegio, the question of the legal standing of the townships in such a procedure has not yet been settled.
Another point is the status of the Charter in San Marino. Up to now, it has not been determined through case law whether the Charter should take precedence over ordinary legislation. This question remains open since there is no explicit norm prescribing the primacy of the Charter. Notwithstanding. Art. 1, the last paragraph of the Declaration provides that: “International agreements protecting freedoms and human rights, regularly signed and made enforceable, shall prevail over domestic legislation in case of conflict”. The question is therefore, whether the Charter fits into this definition, whether it can be considered as “protecting freedoms and human rights” or not.
Given the aforementioned, the rapporteurs conclude that local authorities have the right of recourse to a judicial remedy in order to secure their rights and therefore San Marino fully complies with Art. 11 of the Charter. Nevertheless, the rapporteurs recommend that the national authorities include an explicit provision concerning the precedence of the Charter in the next constitutional revision.
The principle of local government is not explicitly recognised in the constitution of San Marino.
