Decision U.no.176/2004

U.no.176/2004

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 4 May 2005, the Constitutional Court of the Republic of Macedonia passed the following

DECISION

1. Decision no.07-408/12 of 7 April 2003, made by the Council of the Municipality of Ohrid on the adoption of change and supplement to the Detailed Urban Plan for part of the Urban Unit 7 – Ohrid, published in the “Official Gazette of the Ohrid municipality” no.2/2003, IS REPEALED.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.176/2004 of 16 and 17 March 2005, upon the initiative of Sofija Petreska from Ohrid, made through her proxy Kosta Sekerovski from Ohrid, 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. 45/1997, 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 Article 1 of the decision challenged defines that the decision adopts the proposed change and supplement to the Detailed Urban Plan for Urban Unit 7.

In Article 2 of this decision it is laid down that the graphic representations nos. 5 and 6 made by IN PUMA – Skopje under technical no. 256 of 2002 are an integral part of the Decision.

Under Article 3 of the Decision, this decision becomes effective from the date it was adopted, and the same will be published in the Official Gazette of the Ohrid Municipality.

6. On the basis of the notification by the Council of the Ohrid municipality communicated on 8 February 2005, the Court found that regarding the Decision on Changing and Supplementing the Detailed Urban Plan for part of the Urban Unit 7, no previous opinion had been requested from the body competent for the protection of natural rarities.

7. Pursuant to Article 8 paragraph 1 subparagraph 10 of the Constitution, a fundamental value 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 that are used to meet social and individual needs, the Law has 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 specifies 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 constitutional and legal 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, it concerns a fundamental value having a universal character and as such it should be safeguarded and protected in the environment we live in.

Given that in this specific case the Council of the Ohrid 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 has judged that the decision contested is not in conformity with Article 8 paragraph 1 subparagraph 10 of the Constitution and with Article 9 of 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 decision 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.176/2004
4 May 2005
S k o p j e

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

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