Decision U.no.152/2004

U.no.152/2004

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, No.70/1992), at its session held on 20 April 2005, the Constitutional Court of the Republic of Macedonia passed the following

DECISION

1. Decision no.07-1127/5 of 3 July 2004 made by the Council of the Municipality of Struga on the adoption of change and supplement to the Detailed Urban Plan for the Urban Unit 4 – East – Struga published in the “Official Gazette of the Struga municipality” no.38 of 7 July 2004, IS REPEALED.

2. The Resolution on Stopping the Enforcement of Individual Acts and Activities that have been adopted, that is, undertaken on the basis of the Decision as noted in item 1 of this Decision BECOMES INEFFECTIVE.

3. This Decision generates legal effect from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

4. The Constitutional Court of the Republic of Macedonia with its Resolution U.no.152/2004 of 2 March 2005, upon the initiative of Qemail Osmanoski from Struga, instigated a procedure for the appraisal of the constitutionality and legality of the act noted in item 1 of this Decision, since there was a founded question as to its conformity with the Constitution and the Law on the Protection of Ohrid, Prespa, and Dojran Lakes (“Official Gazette of SRM”, nos. 45/1977, 8/1980, 51/1988, 10/1990, and the “Official Gazette of the Republic of Macedonia” no.62/1993).

5. At its session, the Court established that according to the contents of Article 1 of the decision challenged, the decision adopts change and supplement to the Detailed Urban Plan for UU-4-East, Struga. In Article 2 it is expressly stated what the plan contains, while in Article 3 it is stated that the report from the expert consultation is an integral part of the Decision. In Article 4 it is defined that the plan shall be carried out by the Ministry of Transportation and Communications RU Struga, on the basis of the agreement to the Proposed Plan no.13-7390 of 2 July 2004, issued by the Ministry of Transportation and Communications – Skopje, while Article 5 defines that the plan shall be certified with a stamp and signature by the Mayor of Struga municipality by noting the number and date of the session at which it was adopted. Article 6 stipulates that the Decision shall enter into force on the eighth day from the date of its publication in the “Official Gazette of Struga municipality”. The Decision was adopted by the Council of Struga municipality under no.07-1127/5 on 3 July 2004.

6. On the basis of the notification by the Council of Struga municipality no.03-89/2 of 25 January 2005, the Court found that in the procedure for the adoption of the DUP UU-4-East, no previous opinion had been requested from a body competent for the protection of natural rarities.

7. Pursuant to Article 8 paragraph 1 subparagraph 10 of the Constitution of the Republic of Macedonia, one of the fundamental values of the constitutional order of the Republic of Macedonia is the proper urban and rural planning to promote a congenial human environment, as well as ecological protection and development.

Pursuant to Article 1 of the Law on the Protection of Ohrid, Prespa and Dojran Lakes, Ohrid, Prespa and Dojran Lakes their waters, shores, springs and water currents, because of the specific features and natural beauties, geological, geomorphologic, hydrologic, hydrobiological, limnological and other scientific values, cultural, esthetic, educational-pedagogical, health, recreational, tourist and other economic importance are proclaimed as natural monuments of particular significance for the social community and are put under special protection.

With a view to protecting the lakes as goods of general interest which are used to meet social and individual needs, the Law envisaged a series of preventive and other protection measures. Among others, in Article 7 paragraph 1 subparagraph 5 of the Law, it is stipulated that aiming at protecting the lakes, the inflow of unfiltered waste waters from settlements and industrial facilities is prohibited.

Article 9 paragraph 1 of the Law stipulates that construction works, hydro land-reclamation measures, horticultural or other works along the shores of the lakes may take place only under conditions and in a manner defined by space plans of the regions, space plans of the municipalities: Ohrid, Struga, Resen and Dojran, the urban plans of the settlements and the urban plans of the areas with special purpose, as well as by the regulations for the enforcement of these plans.

Pursuant to Article 9 paragraph 2 of the same Law, the plans of paragraph 1 of this Article are adopted following an obtained opinion by the Republican Bureau for the Protection of Natural Rarities.

From the analysis of the provision mentioned, it derives that the basic function of the state is the establishment of a balance between man and nature, between economic and ecologic spheres.

Hence, the development of the economy and industry may not take place in an uncontrolled manner and to the maximum without paying attention to the consequences to the environment and nature stemming from it. Namely, the Court considers that it concerns a fundamental value having a universal character and as such it should be safeguarded and subject to protection as it has been done with the Law on the Protection of Ohrid, Prespa and Dojran Lakes.

Given that in this specific case the Council of the Struga municipality in the procedure prior to the adoption of the decision challenged had not asked for an opinion of the body competent for the protection of natural rarities, the Court judged that it is not in harmony with the Constitution and the Law on the Protection of Ohrid, Prespa and Dojran Lakes.

8. On the basis of what has been stated, the Court has decided as in items 1 and 2 of this Decision.

9. The Court has passed this Resolution in the following composition: the President of the Court Mrs Liljana Ingilizova – Ristova, and the judges: Dr Trendafil Ivanovski, Mr Mahmut Jusufi, Mrs Mirjana Lazarova Trajkovska, Mrs Vera Markova, Mr Branko Naumoski, Dr Bajram Polozani, Mr Igor Spirovski, and Dr Zoran Sulejmanov.

U.no.152/2004
20 April 2005
S k o p j e

PRESIDENT
of the Constitutional Court of the Republic of Macedonia
Liljana Ingilizova – Ristova

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