Resolution U.no.16/2014

U.no.16/2014

On the basis of Article 110 of the Constitution of the Republic of Macedonia and Article 71 of the Rules of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 3 June 2015, the Constitutional Court of the Republic of Macedonia passed the following

RESOLUTION

1. NO PROCEDURE IS INITIATED for the appraisal of the constitutionality of Article 246 paragraph 1 of the Law on Ownership and Other Real Rights (“Official Gazette of the Republic of Macedonia”, nos.18/2001, 92/2008, 139/2009 and 35/2010).

2.  Dragan Pejikj, an attorney from Skopje, filed an application to the Constitutional Court of the Republic of Macedonia for instigation of proceedings to appraise the constitutionality of Article 246 paragraph 1 of the Law on Ownership and Other Real Rights.

According to the allegations in the application, the impugned provision was not in accordance with Article 8 paragraph 1 lines 3, 6 and 11, Article 29 paragraph 1, Article 30 paragraphs 1 and 3, Article 31 and Article 118 of the

Constitution, and at the same time it was inconsistent with Article 5 of the Law on Inheritance, under which foreign nationals in the Republic of Macedonia had the same inheritance rights as the nationals of the Republic of Macedonia under conditions of application of the principle of reciprocity.

The application states that the ban on the acquisition of ownership of agricultural land for legal heirs represented a gross violation not only of fundamental rights and freedoms but also the natural right of every man to inherit the property from his parents, and the impugned provision could apply only in the case of acquisition of ownership of agricultural land through sales contract in which the Republic of Macedonia will protect its national interest. The same provision denied the right of foreign nationals who are legal heirs to the property to enjoy the rights and freedoms guaranteed by the Constitution and on that property they should have the same inheritance rights as Macedonian citizens.

Finally, it is proposed that the contested provision be annulled, and pending a final decision to adopt a resolution on suspending the execution of individual acts or actions taken based on the provision whose constitutionality is challenged.

3. At its session the Court established that under Article 246 paragraph 1 of the Law on Ownership and Other Real Rights, foreign natural and legal persons may not acquire the right of ownership of agricultural land in the Republic of Macedonia.

4. Under Article 1 paragraph 1 of the Constitution of the Republic of Macedonia, Republic of Macedonia is a sovereign, independent, democratic and a social state.

Under Article 8 paragraph 1 lines 3, 6 and 11 of the Constitution, the fundamental values of the constitutional order of the Republic of Macedonia are the rule of law, legal protection of possessions and the respect for the generally accepted norms of international law.

Under Article 29 paragraph 1 of the Constitution, foreign subjects in the Republic of Macedonia enjoy freedoms and rights guaranteed by the Constitution, under conditions defined by law and international agreements.

Article 30 paragraph 1 of the Constitution guarantees the right to ownership of property and the right of inheritance, while under paragraph 3 of the same Article no person may be deprived of his/her property or of the rights deriving from it, except in cases concerning public interest defined by law.

Article 31 of the Constitution envisages that foreign subjects in the Republic of Macedonia may acquire the right of ownership of property under conditions defined by law.

Pursuant to Article 51 of the Constitution, in the Republic of Macedonia laws shall be in accordance with the Constitution and all other regulations in accordance with the Constitution and law.

Under Article 56 paragraph 1 of the Constitution, all natural resources of the Republic of Macedonia, the flora and fauna, goods in common use, as well as the objects and buildings of particular cultural and historical value defined by law, are amenities of common interest for the Republic and enjoy particular protection.

Pursuant to Article 110 line 1 of the Constitution, the Constitutional Court of the Republic of Macedonia decides on the conformity of laws with the Constitution.

Article 118 of the Constitution defines that the international agreements ratified in accordance with the Constitution are part of the internal legal order and may not be changed by law.

The Law on Ownership and Other Real Rights governs the right of ownership and other real rights in accordance with the Constitution (Article 1).

Article 2 of the Law provides that the right to property can be acquired by all domestic and foreign natural and legal persons, including the state and local self-government units, under the terms and conditions stipulated by this and other laws.

Based on Article 6 of the Law, legal protection of property is guaranteed.

Under Article 7 of the Law, acquisition, protection and termination of the right of ownership and other real rights are regulated by law.

Pursuant to Article 12 paragraph 1 of the Law, the subject to the right of ownership are all items which can belong to natural and legal entities, other than those which by their nature or based on the law cannot be the subject of this right.
Article 13 paragraph 4 of the Law stipulates that real estate, in terms of this Law, shall be land (agricultural, construction, forestry and pasture) and buildings and installations erected over them or under them and permanently connected to them, unless otherwise stipulated by law.

Under Article 16 paragraph 1 of the Law, all natural resources, flora and fauna, goods in common use, construction land, forests and agricultural land, pasture and waters, as well as items and buildings of particular cultural and historical value defined by law are items (goods) of general interest to the Republic. Under paragraph 2 of the same Article, the items that based on the Constitution or special laws are proclaimed items of general interest to the Republic may be subject to the right of ownership of the state, that is, of natural and legal persons. In accordance with the next paragraph, the forms of ownership of construction, agricultural and forest land, pasture and waters are governed by special regulations.

The legal grounds for acquisition of the right of property are set out in Article 112 paragraphs 1 and 2 of this Law. According to paragraph 1, the right to property is acquired by law on the basis of legal work and inheritance, while under paragraph 2 of the same article the right to property is acquired also with a decision of a competent state body, in a manner and under conditions defined by law.

The acquisition of property by inheritance is regulated by Article 153 of the Law. According to paragraph 1 of this Article, the right of ownership of an item is acquired by inheritance at the time of opening the inheritance of the property of the deceased, unless otherwise provided for by law.

The Law on Ownership and Other Real Rights contains a special section (Part four), which is entitled “Real rights of foreign persons” (Articles 240 through 252-a).

Pursuant to Article 240 of the Law, the provisions of this Law shall also apply to foreign natural and legal persons, unless otherwise defined by law or international agreement.

Under Article 241 paragraph 1 of this Law, a foreign person, under this Law, is any natural person who does not hold citizenship of the Republic of Macedonia, unless otherwise stipulated by law. According to paragraph 2 of the same article, a foreign legal person, under this Law, shall be a legal entity which has its registered office outside the territory of the Republic of Macedonia, unless otherwise defined by law.

Article 242 stipulates that foreign natural and legal persons may acquire the right to ownership of movable items as domestic persons.

The acquisition of the right of property of foreign persons over immovable property on the territory of the Republic of Macedonia by means of succession is regulated by Article 243 (paragraphs 1-3) of the Law. Under paragraph 1 of this Article, foreign natural persons nationals of states that are not members of the European Union and the Organization for Economic Cooperation and Development (hereinafter: the OECD) may acquire by inheritance rights to ownership of immovable property on the territory of the Republic Macedonia under conditions of reciprocity as the citizens of the Republic of Macedonia, unless otherwise provided for by an international agreement. Under paragraph 2 of the same article, foreign natural persons, citizens of the Member States of the European Union and OECD, may acquire by inheritance rights to ownership of immovable property on the territory of the Republic of Macedonia under the same conditions as the nationals of the Republic of Macedonia. Paragraph 3 of the same article stipulates that foreign legal entities may, under the conditions of reciprocity, acquire ownership rights over immovable property on theterritory of the Republic of Macedonia with succession based on a will.

The acquisition of ownership rights to an apartment, residential building and office space of foreign persons on the territory of the Republic of Macedonia is regulated in Article 244 paragraphs 1 and 2 of the Law. Under paragraph 1, foreign natural and legal persons resident in Member States of the European Union and OECD may acquire the right of ownership of an apartment, residential building and office space on the territory of the Republic of Macedonia under the same conditions as the nationals of the Republic of Macedonia. Under paragraph 2, foreign natural and legal persons resident in states that are not members of the European Union and OECD may acquire the right of ownership of an apartment, residential building and office space on the territory of the Republic of Macedonia as the citizens of the Republic of Macedonia, under the same conditions of reciprocity.

The acquisition of real rights over land of foreign persons on the territory of the Republic of Macedonia is governed by Article 245 paragraphs 1 and 2 of the Law. According to paragraph 1, foreign natural and legal persons resident in Member States of the European Union and OECD may acquire the right to property and the right to long-term lease of construction land on the territory of the Republic of Macedonia under the same conditions as domestic legal entities and natural persons  citizens of the Republic of Macedonia. According to paragraph 2, foreign natural and legal persons resident in states that are not members of the European Union and OECD may acquire the right to property and the right to long-term lease of construction land on the territory of the Republic of Macedonia under conditions of reciprocity.

The acquisition of real rights over agricultural land of foreign natural and legal persons is governed by Article 246 of the Law. Under the impugned paragraph 1 of this Article, foreign natural and legal persons may not acquire the right of ownership of agricultural land on the territory of the Republic of Macedonia. Pursuant to paragraph 2 of the same Article, foreign natural and legal persons may, under conditions of reciprocity, acquire the right to long-term lease of agricultural land on the territory of the Republic of Macedonia, based on the consent of the Minister of Justice, after considering the opinion of the Minister of Agriculture, Forestry and Water Management and the Minister of Finance.

Article 250 provides that a foreign person may not be the owner of real estate, which for the purposes of protecting the interests and security of the Republic of Macedonia has been declared by law as an area in which foreigners have no right of ownership, unless otherwise defined by law.

Article 251 of the Law stipulates that foreign natural and legal persons may, with legal actions, transfer the right of ownership to domestic entities, and to a foreign person that may acquire ownership rights.

Under Article 5 paragraph 1 of the Law on Agricultural Land (“Official Gazette of the Republic of Macedonia” nos.135/2007, 17/2008, 18/2011, 42/2011, 148/2011, 95/2012, 79/2013, 87/2013, 106/2013, 164/2013, 39/2014, 130/2014, 166/2014 and 72/2015), agricultural land, in the sense of this Law, are cultivated field, garden, orchards, vineyards, olive groves, other perennial plantations, meadows, pastures, wetlands, reeds, fishponds, level below greenhouses, level below ancilary facilities, level below a facility for primary processing of agricultural products, as well as land used for the needs of greenhouses, ancilary facilities and facilities for primary processing of agricultural products, and other land used or not used (non-arable land), and which with the application of agrotechnical and agroreclamation and hydroreclamation measures can be recovered for agricultural production.

According to Article 1 of the Law on Inheritance (“Official Gazette of the Republic of Macedonia” no. 47/1996), the inheritance right in the Republic of Macedonia is exercised under the provisions of this Law.

Under Article 2 of this Law, objects and rights that belong to individuals may be inherited.

Under Article 5 of the Law, foreign nationals in the Republic  of Macedonia have, under the conditions of application of the principle of reciprocity, the same inheritance rights as the nationals of the the Republic  of Macedonia.

Pursuant to Article 120 paragraph 1 of the Law, the death of a person opens his legacy, and in accordance with paragraph 2 of the same Article, the declaration of a person dead has the same effect.

Article 127 of the Law provides that the legacy of a deceased person is transferred, under the law, to his successors at the time of his demise.

Pursuant to Resolution No.1803 of the United Nations General Assembly of of 14 December 1962, peoples and states have a right to permanent sovereignty over their natural wealth and resources which should be exercised in the interest of national development and welfare of the citizens of the state (paragraph 1 of the Resolution).

Pursuant to Resolution No.3201 of the United Nations General Assembly of 1 May 1974, the new international economic order should be based on full respect for, inter alia, the principle that every country has full permanent sovereignty over their natural resources and all economic activities. In order to protect these resources, every country has the right to exercise full effective control over them and their exploitation with means corresponding to its situation, including the right to nationalisation or transfer of ownership to its citizens, as a right through which the full permanent sovereignty of the state is articulated. No country can be subjected to economic, political or other type of coercion to prevent the free and full exercise of this inalienable right (paragraph 4, sub-section e of the Resolution).

Under Article 17 paragraph 1 of the Universal Declaration of Human Rights, everyone has the right to own property, alone as well as in association with others. Under paragraph 2 of the same Article, no one may be arbitrarily deprived of his property.

Pursuant to Article 1 paragraph 1 of Protocol No.1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention for the Protection of Human Rights and Fundamental Freedoms), any natural or legal person is entitled to the peaceful enjoyment of his possessions. No one can be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. Under paragraph 2 of the same article, the foregoing provisions will not interfere with the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxe, other contributions and fines.

Taking into consideration the above, it clearly arises that the impugned provision of Article 246 paragraph 1 of the Law on Ownership and Other Real Rights is in accordance with Article 8 paragraph 1 lines 3, 6 and 11, Article 29 paragraph 1, Article 30 paragraphs 1 and 3, Article 31 and Article 118 of the Constitution, and for the reasons listed below.

The legal regulation of acquisition, exercise and termination of the rights to real estate that is part of the territory of a state is the exclusive jurisdiction of the state, whose authority is exercised in that territory. This is in accordance with the principle of sovereignty of states as a basic principle of international law, taking into account that the territory of the state is one of the three constituent elements of the state, besides government and population, and the legal framework is one of the ways through which the sovereignty of the state is exercised.

This principle is even more pronounced when it comes to real estate that is natural resource (such as case with agricultural land), over which states have a sovereign right to decide on the legal regime that will apply over them, which is also recognised by international law.

Thereby, states are not absolutely unrestricted in the legal regulation of real estate rights, but they should always respect the civilisational standards on the right to property established by the sources of international law, and which basically relate to its exercise and protection from legally unfounded actions of public and legal subjects. This means that the rules adopted by the states may not be a legal basis for violation of these standards.

Such standards are: any natural or legal person is entitled to the peaceful enjoyment (management) of the possessions; right to undenial of possessions (in the sense of inviolability of possessions from public and legal actions that are arbitrary and do not cross the boundary in particular in the fulfillment of general interests); and right to deprivation of possessions only in the public interest under the specific conditions provided for by law and by the general principles of international law.

The impugned provision of Article 246 paragraph 1 of the Law on Ownership and Other Real Rights is the exercise of jurisdiction of the state for legal regulation of the rights over possessions on its territory, which are also natural resources, in the area of ??regulation of the acquisition of (real) rights over this real property.

It regulates that the right to property cannot be acquired by certain entities (foreign natural and legal persons), over a particular type of real estate (agricultural land), resulting in a situation where the right of property does not exist. Therefore, it cannot be considered as a legal basis for interference in the peaceful enjoyment (management) of possessions or deprivation of property by public and legal actions that are arbitrary and cross certain boundary in the fulfillment of general interests, that is, is not a legal basis for deprivation of property without any public interest.

Standards listed above apply when the property right exists and is exercised. Therefore, only an existing right is protected, but not the right to acquire ownership inter vivos or mortis causa. Moreover, they do not guarantee the acquisition of the right of ownership of the subjects, because the rules for acquiring this right are laid down by states themselves, as it is the situation in this case.

Accordingly, the provision of Article 246 paragraph 1 of the Law on Ownership and Other Real Rights does not violate the fundamental value of the constitutional order – respect for the generally accepted norms of international law under Article 8 paragraph 1 line 11 of the Constitution of the Republic of Macedonia.

Furthermore, the challenged provision does not infringe either the fundamental value of the constitutional order – legal protection of property under Article 8 paragraph 1 line 6 of the Constitution of the Republic of Macedonia.

Namely, the importance of this fundamental value is that the legal system should ensure and govern the methods of intervention for protection against possible damage to existing ownership-legal relations, in order to enable the holders of the property right undisturbed performance of ownership-legal powers.

The Law on Ownership and Other Real Rights contains a provision guaranteeing legal protection of property (Article 6), but also contains provisions stipulating legal avenues to protect the right of ownership (Articles 156-163, Section 5 entitled “Protection of the right of property”).

The impugned provision is not codified in this section of the Law, nor does it by its subject of regulation refer to guaranteeing and regulating manners of intervention against possible violations of the existing ownership and legal relations or deny the guarantee of legal protection as a fundamental value and/or prohibit the use of legal avenues to protect possessions.

The constitutional guarantee of the right to property and the right to inheritance under paragraph 1 of Article 30 of the Constitution, means commitment of the state, through its bodies, to enable the holders of these rights their exercise and legal protection. In the part of the legislature, this means that the state has an obligation to adopt laws that would prescribe rules for exercise and legal protection of the right to property and the right to inheritance.

The constitutional provision of paragraph 3 of the same article guarantees the conditions under which the right of ownership (not the right of inheritance, as stated in the application) may be revoked or restricted. In fact, the provision in principle prohibits the revocation or limitation of property and the rights arising from it, but also provides an exception when there may be revocation of restriction – only when there is a public interest which should be defined by law. Accordingly, in prescribing the rules for exercising the right of ownership the legislator may only foresee its revocation, that is, restriction on grounds of public interest which will also be determined by law.

The impugned provision does not regulate the exercise of the right to property and its legal protection, but concerns the conditions under which certain entities may not acquire the same. As such, it does not fit within the constitutional guarantees under paragraphs 1 and 3 of Article 30 of the Constitution of the Republic of Macedonia.

On the other hand, there is no foundation of the allegations in the application that through the contested provision foreign nationals are deprived a priori of the right of inheritance which is acquired with the demise of the testator, and consequently were deprived also of the right to possessions, which according to the above cited provisions might not be revoked or restricted, except when it came to public interest defined by law, and according to this it was not in accordance with the constitutional provisions guaranteeing this.

Namely, the right to property and the right to inheritance are subjective civil powers of property-legal character. The first means authorisation for the holder of this right to keep, fully use and dispose of certain item, and the latter is an authorisation for a person to acquire the legacy of certain testator, in whole or in part, in case of death of that testator, and the person acquires this right at the moment of death of the testator or his declaring as deceased.

The types of subjective civil powers, terms and conditions of their acquisition, their content and restrictions, and terms and conditions for their termination shall be determined by objective law. Therefore, they are not a category that exists before, and objective law has only the task to recognise them as rights that did not exist previously but are acquired and exercised only on the basis of the conditions previously laid down by the objective law.

In particular, this means that foreign nationals will be able to become holders of the right to property and the right to inheritance, only after objective law determines the cases and conditions for acquiring these rights.

On the other hand, when the objective law stipulates that certain subjects may not acquire certain subjective civil authority, it cannot be considered a restriction or deprivation of such subjective civil authority, for a reason that something that does not exist cannot be restricted or taken away.

With the disputed provision the legislator stipulated that foreigners cannot acquire property right over agricultural land in the Republic of Macedonia. The impossibility of obtaining the right of ownership of agricultural land under this provision is general, that is, the right to property cannot be acquired on any of the grounds for the acquisition of property set out in Article 112 paragraphs 1 and 2 of the Law on Ownership and Other Real Rights (based on law, legal business, inheritance or decision of a competent authority in a manner and under conditions specified by law).

Namely, what can be inherited are objects and rights that belong to individuals (Article 2 of the Law on Inheritance). This legal norm means that objects and rights that belonged to the deceased at the time of death can be inherited, but also the objects and rights can be transferred to people to whom these objects and rights may belong, that is, who may be the holders of those rights and the rights to those items.

In accordance with objective law, foreign citizens may not acquire the right of ownership of agricultural land in the Republic of Macedonia on any grounds and be its holders. In cases where the legacy includes such land that is owned by the testator, and foreign nationals are legal heirs, at the time of death of the testator, the right of ownership of this land cannot be transferred to the legal heirs.

In support of the allegations in the application,  as an argument is indicated that our legislation foresaw foreign nationals in the Republic of Macedonia have, under conditions of application of the principle of reciprocity, the same inheritance rights as citizens of the Republic of Macedonia, in accordance with Article 5 of the Law on Inheritance.

Foreign nationals will be holders of hereditary rights only when objective law previously envisages that they may be the holders of an obligation or real right.

Consequently, it appears that the challenged provision does not violate the constitutional guarantees of paragraphs 1 and 3 of Article 30 of the Constitution of the Republic of Macedonia, relating to rights that are acquired, that is, they do not guarantee the acquisition of title and the right of inheritance. At the same time, it does not violate the constitutional guarantee of the prohibition of confiscation and restriction of the right to property, for a reason that it is a provision governing the acquisition of this right.

The impugned provision is in accordance with Article 29 paragraph 1 of the Constitution of the Republic of Macedonia under which foreigners in the Republic of Macedonia enjoy freedoms and rights guaranteed by the Constitution, under conditions specified by law and international treaties.

According to the said constitutional provision, foreigners in the Republic of Macedonia have those constitutional rights and freedoms, which the state unilaterally determined for them by law or accepted by two-sided or multi-faceted international legal act, not all rights and freedoms of the citizens of the Republic of Macedonia. Also, according to the cited constitutional norm the legislator has no obligation whatsoever to prescribe the same conditions for the exercise of individual freedoms and rights of foreigners which are reserved for citizens – nationals of the Republic of Macedonia and thus put them in the same or equal position with them.

The Law on Ownership and Other Real Rights in Article 2 provides that in addition to the domestic ones foreign natural and legal persons may acquire the right to property, under conditions and manner prescribed by this and other law.
The legislator in this law equates foreign natural and legal persons with domestic persons in the acquisition of ownership of movable property (Article 242); furthermore, foreign natural persons nationals of countries that are not members of the European Union and OECD may acquire by inheritance rights to ownership of immovable property in the Republic of Macedonia under conditions of reciprocity, as the citizens of the Republic of Macedonia, unless otherwise defined by an international agreement (Article 243 paragraph 1); foreign natural persons, citizens of member states of the European Union and OECD may by inheritance acquire ownership rights over immovable property in the Republic of Macedonia under the same conditions as nationals of the Republic of Macedonia (Article 243 paragraph 2); and foreign legal entities may, under conditions of reciprocity, acquire ownership rights over immovable property in the Republic of Macedonia with inheritance based on a will (Article 243 paragraph 3).

It also foresaw that foreign natural and legal persons resident in Member States of the European Union and OECD may acquire title to an apartment, residential building and office space in the Republic of Macedonia under the same conditions as nationals of the Republic of Macedonia (Article 244 paragraph 1); foreign natural and legal persons resident in countries that are not members of the European Union and OECD can acquire title to an apartment, residential building and office space in the Republic of Macedonia as the citizens of the Republic of Macedonia, under the same conditions of reciprocity (Article 244 paragraph 2).

Furthermore, foreign natural and legal persons resident in Member States of the European Union and the OECD may acquire the right to property and the right to long-term lease of construction land in the Republic of Macedonia under the same conditions as domestic legal entities and natural persons citizens of the Republic of Macedonia (Article 245 paragraph 1); and foreign natural and legal persons resident in countries that are not members of the European Union and the OECD may acquire the right to property and the right to long-term lease of construction land in the Republic of Macedonia under conditions of reciprocity (Article 245 paragraph 2).

On the other hand, foreign natural and legal persons may not acquire the right of ownership of agricultural land (Article 246 paragraph 1) and a foreign person cannot be the owner of real estate which for the purposes of protecting the interests and security of the Republic of Macedonia has been declared by law as an area in which foreigners have no right of ownership, unless otherwise defined by law (Article 250).

With the cited preceding two provisions of the Law, one of which is impugned, the legislator foresaw two situations when the right of ownership of foreign persons is not available to them, that is, they may not acquire it, although the Law contains provisions also cited above under which foreign persons in other situations can acquire this right and are equal to nationals.

The Constitution in Article 31 provides for the possibility for a foreign person to acquire ownership rights in the Republic of Macedonia.

The determination of the conditions for acquiring the right of ownership of a foreign person in the Republic of Macedonia is the responsibility of the legislator, which undoubtedly stems from the same provision of the Constitution, which stipulates that the conditions for acquiring the right of ownership of a foreign person be laid down by law.

Accordingly, the legislator has complete freedom in what kinds of conditions for the acquisition of property by foreign persons it shall prescribe, whether to restrict or condition the acquisition of ownership rights over certain kinds of things, whether to provide for the possibility of acquiring other real rights, in addition to the right to property (for instance, right to a long-term lease of agricultural land under Article 246 paragraph 2 of the Law on Ownership and Other Real Rights) etc.

At the same time, with the disputed provision the legislator does not put foreign persons in an unequal position for reasons that the Constitution of the Republic of Macedonia treats foreigners differently in relation to the nationals, which means that there is a constitutional basis for their different treatment by law and grants the legislator a right to freely assess the conditions under which a foreign person in the Republic of Macedonia may acquire the right to ownership, without an obligation to make them equal with its nationals in the acquisition of this right.

The stipulation of the impossibility for foreign persons to acquire ownership over agricultural land in the Republic of Macedonia expresses public interest because it is a good of general interest and a natural resource that has an important share in the economic activity of the country. The public interest consists in that this good to remain in ownership of domestic entities which have established with the state a legal link of public-legal character (with the natural persons that is citizenship, while with legal entities it is their affiliation) and to limit it for foreigners who have not established such a legal relationship.

This public interest is only possible to be fulfilled by law, because the acquisition of the ownership right is regulated by law, thereby respecting all norms of international law regarding the right to property and the disputed provision does not restrict or revoke rights.

Considering that the impugned provision of Article 246 paragraph 1 of the Law on Ownership and Other Real Rights is not contrary to any provision of the Constitution of the Republic of Macedonia set out in the application, in the present case there is no violation  of the fundamental value of the constitutional order of the Republic of Macedonia – the rule of law – in terms of disagreement of a legal provision with the Constitution of the Republic of Macedonia.
Regarding the allegations in the application that the impugned provision was contrary to Article 5 of the Law on Inheritance, they cannot be the subject of constitutional court assessment, for a reason that the Constitutional Court of the Republic of Macedonia is not competent to decide whether a statutory norm is inconsistent with another statutory provision, but it is only competent to decide on the conformity of laws with the Constitution (Article 110 paragraph 1 of the Constitution of the Republic of Macedonia).

Since the impugned provision of Article 246 paragraph 1 of the Law on Ownership and Other Real Rights is in accordance with Article 8 paragraph 1 lines 3, 6 and 11, Article 29 paragraph 1, Article 30 paragraphs 1 and 3, Article 31 and Article 118 of the Constitution of the Republic of Macedonia, the request to adopt a ruling suspending the execution of the individual acts or actions taken based on the disputed provision in Article 27 of the Rules of the Constitutional Court of the Republic of Macedonia is unfounded.

5. On the basis of what has been stated, the Court decided as in item 1 of this Resolution.

6. The Court passed this Resolution with a majority vote in the following composition: the President of the Court Elena Gosheva, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mr Nikola Ivanovski, Mr Jovan Josifovski, Mrs Vangelina Markudova, Mr Sali Murati, Dr Gzime Starova and Mr Vladimir Stojanoski.

U.br.16/2014
3 June 2015
Skopje

PRESIDENT
of the Constitutional Court of the Republic of Macedonia
Elena Gosheva

Separate opinions

 

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