Decision U.no.262/2009

U.no.262/2009

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 2 February 2011, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. Articles 138 and 140 of the Law on Construction (“Official Gazette of the Republic of Macedonia”, no.130/2009) SHALL BE REPEALED.

2. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

3. The Constitutional Court of the Republic of Macedonia with its Resolution U.br.262/2009 of 17 November 2010 instigated proceedings for appraising the constitutionality of the contested articles of the Law noted in item 1 of this Decision. The proceedings were instigated as there was a well-founded question raised before the Court as to the accordance of the contested articles of the Law on Construction with the Constitution of the Republic of Macedonia.

4. At its session the Court found that the contested provision of Article 138 of the Law on Construction envisages that:

“(1) In the resolution referred to in Article 137 of this Law when the construction inspector, that is, the authorised construction inspector finds that the building is being constructed or has been constructed contrary to the approval for construction, he/she may issue prohibition for alienation, burden and disposal with the land and the building.
(2) In the cases referred to in paragraph 1 of this article, the resolution shall be submitted to the body responsible for the keeping of the public book for making an entry of the rights of immovable property after which the Republic of Macedonia, for the buildings of first and second category, that is the municipality, for the buildings of third, fourth and fifth category, shall gain the pledge right to the land and the building, that is, the parts that have been constructed in line with the approval for construction.
(3) The resolution at the same time defines obligation for payment of penalty in the amount of 3% per month of the market value that is calculated for the same or similar immovable property by the competent body for calculation of taxes, counted from the date the resolution becomes final to the date the obligation is met. The market value shall be determined according to the notification of the body competent for the determination of the property tax.

(4) The entry of the pledge right and the pronouncement of penalty shall postpone the enforcement of the resolution for a period not longer than three years from the date the resolution is adopted.

(5) If the obligee fails to meet his/her obligation for removal or harmonisation of the building with the approval for construction within the time limit defined in the resolution and/or fails to pay penalty within three consecutive months, the competent body shall enforce the gaining of the ownership of the land and the building – the part which has been built with the approval for construction, if such is found, in a manner and procedure pursuant to this Law.

(6) The transfer of the right to ownership of the pledged land and building – the part built with the approval for construction shall take place with an entry of the change in the public books on the basis of a special conclusion for execution of the competent inspector. The conclusion for execution is also a ground for a change of the investor in the approval for construction and the approval for use in view of the part of the building that is built with the approval for construction, and is found at the moment of execution.

(7) A separate appeal may be lodged against the conclusion referred to in paragraph 6 of this Article, which does not suspend the enforcement.

(8) If the obligee meets the obligation for removal defined in the resolution and pays the penalty, the pledge right shall terminate and the competent inspector adopts a conclusion which is a ground to erase the pledge right in the Public Book of Immovable Property”.

Under Article 140 of the sale Law “The part of the resolution in which the obligation for payment of penalty is defined is an executive title and a ground for settlement in a procedure and manner pursuant to the Law on Execution”.

5. In the part of the Constitution referring to the fundamental values of the constitutional order of the Republic of Macedonia, pursuant to Article 8, paragraph 1, lines 3, 4, 6 and 11 of the Constitution, the rule of law, division of state powers into legislative, executive and judicial, legal protection of ownership, and the respect for generally accepted norms of international law are the fundamental values of the constitutional order of the Republic of Macedonia.

Under Amendment XX to the Constitution, which supplements Article 13, a sanction for minor offences defined by law may be pronounced by a body of state administration or organisation and another body performing public mandates. Court protection against a final decision on minor offence is guaranteed under the conditions and in a procedure regulated by law.

Pursuant to Article 14 paragraph 1 of the Constitution, no one may be punished for an offence which has not been declared an offence punishable by law or by other regulation prior to its being committed and for which no punishment has been prescribed.

Under Article 30 paragraph 1 of the Constitution, the right to ownership of property and the right to inheritance are guaranteed. Under paragraph 2 of this article of the Constitution, ownership of property creates rights and duties and should serve the wellbeing of both the individual and the community. Under paragraph 3 of the same article, no person may be deprived of or have restriction to his/her property and the rights deriving from it, except in cases concerning a public interest defined by law, and under paragraph 4 of this article in the Constitution, in case of expropriation of the property or in case of restriction of ownership of property rightful compensation is guaranteed, which may not be lower than its market value.

Under Article 51 of the Constitution, in the Republic of Macedonia laws must be in accordance with the Constitution and all other regulations in accordance with the Constitution and law.

Pursuant to Article 52 of the Constitution, laws and other regulations may not have a retroactive effect, except in cases when this is more favourable for the citizens.

The Law on Construction (“Official Gazette of the Republic of Macedonia”, no.130/2009 of 28 October 2009) in Article 1 defines that this Law governs the construction, basic requirements of the building, the project documentation required to obtain a construction approval, the rights and obligations of the participants in the construction, the manner of use and maintenance of the building, as well as other issues of relevance for the construction.

Under Article 2 item 2 of the Law, which defines the meaning of certain expressions used in this Law, a building is everything that has come into being with construction and is connected with the land, and is a physical, technical-technological and construction whole together with the constructed installations, that is, equipment.

The contested Articles 134 and 140 of the Law are contained in Chapter X of this Law, under the heading “SUPERVISION”.

Article 127 of the Law envisages that supervision of the implementation of this Law and the regulations adopted on the basis of this Law shall be made by the body of state administration competent for the performance of the matters from the field of spatial arrangement.

Article 137 of the Law on Construction which is included in item 6 of Chapter X of the Law, subtitled “Resolution of an Inspector”, envisages that:

“(1) Depending on the situation established the construction inspector, that is, the authorised construction inspector shall draft minutes, on the basis of which he/she passes a resolution.

(2) An appeal may be lodged against the resolution of the construction inspector, and a special appeal may be lodged against the conclusion allowing enforcement, the conclusion for suspension of the procedure and the conclusion for the costs of the enforcement of the procedure with the Commission for Resolving Administrative Matters in the Second Instance from the Field of Transportation and Communications and the Environment within the Government of the Republic of Macedonia.

(3) An appeal may be lodged against the resolution of the authorised construction inspector, and a special appeal may be lodged against the conclusion allowing enforcement, the conclusion for suspension of the procedure and the conclusion for the costs of the enforcement of the procedure with the minister running the body of state administration competent for the carrying out of the tasks from the field of spatial arrangement.

(4) The appeal lodged against the resolution of the construction inspector, that is, authorised construction inspector, shall not suspend the enforcement of the resolution.”

The submitters of the initiative contest Article 138 of the Law, but considering the Article challenged in correlation with the wholeness of the Law, and from the aspect of the statements in the initiative, the Court found that the same is not in accordance with the provisions of the Constitution, which is pointed out in the initiative.

The contested provision of Article 138 of the Law stipulates that when the construction inspector finds that the building is being constructed, that is, has been constructed contrary to the construction approval, he/she may pronounce prohibition for alienation, burden and disposal with the land and the building. With the same resolution the Republic of Macedonia, that is, the municipality acquires a pledge right, as well as obligation for payment of penalties in the amount of 3% per month of the market value. Should the obligee fail to meet the obligation for removal or harmonisation of the building with the construction approval within the time limit set, and fails to pay the determined penalties, forced execution is carried out by acquiring the ownership of the land and the facility, that is, part of the building which has been built without, that is, contrary to the construction approval.

From the said legal regulation arises the intention of the legislator to strain the so far manner of regulation of the relations in the construction field, that is, to fully regulate the relations in the construction of facilities, and in particular with regard to the conditions for obtaining an authorisation and licence for the performance of the tasks of constructing buildings, making projects, revising project documentation.

However, from the analysis of the contents of the challenged Article 138, it arises that the same restricts the right to ownership of both the facility, that is, building, and the land on which the same has been constructed. Namely, ownership as the most significant property-legal institute is defined by the basic act of the Republic of Macedonia – the Constitution -, the norms of which are already cited above, and the Law on Ownership and Other Real Rights defines the contents, legal effect, restrictions and the object of the right to ownership, as well as the protection of that right.

The content of the right to ownership expressed through the right to governance, full use and disposal with the Law on Ownership and Other real rights is left to the will of the owner. All restrictions have no meaning of a change in the legally defined content of the right to ownership. Hence, the owner is entitled to possess his thing, use it and dispose with it, owing to which the right to ownership also enjoys special protection as one of the fundamental human rights and freedoms. This right to ownership is guaranteed by the Constitution. The Constitution places in an equal position all types of ownership irrespective of the dominance of the private ownership and provides equal legal protection of the same.

The Law on Ownership and Other Real Rights regulates the right to ownership and other real rights in accordance with the Constitution. The Law, defining the content of the right to ownership, does not leave the owner to dispose with the object of the right to ownership, since in the same the legislator also bore in mind the constitutional principle under which the titulars exercise the right to ownership in accordance with the nature and purpose of the object of that right and the conditions for turnover of these rights are defined by law. Article 30 paragraph 3 of the Constitution and Article 8 of this Law, as a matter of fact, indicate that the right to ownership is the broadest real right, but the same may not exist as a sacred and inviolable right, since it may be restricted owing to the existence of a public interest defined by law. However, all envisaged legal restrictions do not have a meaning of certain change in the regulation of the legal content of the right to ownership (right to possess, use and dispose with things), but only restriction of the exercise of the right to ownership in certain direction, and the content of the ownership remains the same and is contained in the possibility of the factual exercise.

Unlike such restrictions, which only mean disablement of the full factual exercise, the right to ownership may also be taken away, but it may be done only under the conditions defined by law. That is also stipulated in Article 30 paragraph 3 of the Constitution, which prescribes that no person may be deprived of or have his/her property restricted and the rights deriving from it, except in cases concerning public interest defined by law. Such law in our country is the Law on Expropriation, under which the right to ownership may be fully or partially taken away when public interest is concerned.

In the Law on Construction, without defining the existence of a public interest, the legislator engages into restricting, that is, taking away the right to ownership of both the illegally built facility and the land on which the facility is built, and which is owned by certain natural or legal person, that is, the land is taken away from the owner without thereby defining what public interest is at stake.

Namely, paragraph 5 of the contested Article 138 of the Law, defines that if the obligee fails to meet his obligation for removing or harmonising the building with the approval for construction, or fails to pay the set penalties three months in a row, there will be forced execution with acquisition of the right to ownership of both the land and the facility, in favour of the Republic of Macedonia, that is, the municipality. However, from the analysis of the content of such legal solution, it is concluded that the same is not in correlation with the fundamental values of the constitutional order of the Republic of Macedonia envisaged in Article 8 paragraph 1 lines 3 and 6 of the Constitution, that is, the same creates legal uncertainty among the citizens of the Republic of Macedonia, since the contested legal solution is unclear and imprecise owing to which there is no possibility to determine the connection between the constructor and the illegal building and the owners of the land which despite the constitutional guarantee for inviolability of the right to ownership and legal protection of their legally gained right to ownership of the immovable property, shall be taken away from them with forced execution, without thereby establishing the existence of a public interest.

Hence, according to the Court the contested articles of the Law violate the guaranteed right to ownership, if one accepts that the intervention of the state in taking measures to observe the provisions of the Law on Construction exceeds the framework of what is the essence of a legally constructed facility, that is, a facility constructed on the basis of an approval for construction. The purpose of the Law, that is, the full regulation of the relations in the field of construction raises the question whether the same may be secured also through the existing legal instruments governed in the positive legal regulations by establishing the economic interest.

The manner in which a change is made in the titular of the ownership of the facilities and the land by classical taking away of the same with entering a pledge right to the land and facility, and then by forced execution – taking away of the land and the facility and their transfer to the Republic of Macedonia, that is, the municipality to become a titular of the right to ownership, is a classical manner of taking away, that is, restriction of the right to ownership with intervention of the state, and is in contradiction with the constitutional principles and rights, standardised in the Constitution of the Republic of Macedonia.

The challenged Article 138 of the Law on Construction according to the Court is also not in accordance with the fundamental principle of the constitutional order of the Republic of Macedonia – the rule of law and legal certainty of the citizens. This for a reason that the legal solution for Article 138 is not compatible with the manner of resolving this issue governed in the other positive legal regulation.

Namely, Article 117 of the Law on Cadastre of Immovable Property (“Official Gazette of the Republic of Macedonia”, no.40/2008) stipulates that what is entered in the cadastre of immovable property must be fully defined with regard to 1. the immovable property to which the entry refers, 2. the holder of the right to immovable property, and with regard to the 3. rights, that is, other facts that are entered.

However, the contested Article 138 of the Law on Construction does not clearly individualise, that is, determine the immovable property, owing to which the state may not gain the right to ownership unless the thing is defined, and thus the individually undetermined thing pursuant to the Law on Cadastre and Immovable Property nay not be object of entry. Hence, the Court finds that with the contested article of the Law on Construction the state shall gain illegally with the right to ownership since it does not meet the conditions defined in the cited Article 117 of the Law on Cadastre of Immovable Property.

Under Article 128 of the Law on Cadastre of Immovable Property, the entry in the cadastre of immovable property is made on the basis of law, effective court decisions, decisions on a temporary measure, preliminary measure, other acts for securing claims pursuant to law and final, that is, effective acts of the bodies of state authority, the bodies of local self-government units and of the City of Skopje, legal and other persons which are entrusted by law to perform public mandates and legal deeds.

The cited article of the Law notes the legal grounds for making an entry in the cadastre of immovable property, and inter alia it envisages that the right to ownership may be acquired by the state on the basis of decisions of a competent body, however that decision must be effective. The resolution of the construction inspector referred to in the contested Article 138 of the Law on Construction is only enforceable and the parties are entitled to an appeal against the same, which means that the resolution is not final, as envisaged in Article 128 of the Law on Cadastre of Immovable Property. Hence, according to the Court no pledge right may be established on the basis of such legal act.

Resulting from what has been noted, the Court found that the contested provision of the Law on Construction is not in accordance with Article 8 paragraph 1 line 3 of the Constitution, that is with the principle of the rule of law and legal certainty of the citizens, and first of all owing to the lack of harmonisation of this provision within the legal system of the Republic of Macedonia.

Since the contested Article 140 of the Law on Construction is operationalisation of Article 138 of the Law, the Court found that the said violations and dilemmas with regard to the constitutional norms also reflect on this Article of the Law.

6. On the basis of the aforementioned, the Court decided as in item 1 of the present Decision.

7. The Court took the present decision with a majority vote in the following composition: Mr Branko Naumoski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Dr Trendafil Ivanovski, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Igor Spirovski, Dr Gzime Starova and Dr Zoran Sulejmanov.

U.no. 262/2009
2 February 2011
Skopje

PRESIDENT
of the Constitutional Court of the Republic of Macedonia,
Branko Naumoski

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