Separate opinion

Separate opinions on the Resolution U.no.16/2014

On the basis of Article 25 paragraph 6 of the Rules of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.70/1992), upon my voting against the Resolution U.br.16/2014, adopted on 03.06.2015, for non-initiation of proceedings to appraise the constitutionality of Article 246 paragraph 1 of the Law on Amending the Law on Ownership and Other Real Rights (“Official Gazette of the Republic of Macedonia”, no.92/2008), I separate and explain in writing the following

S E P A R A T E   O P I N I O N

With the said Resolution, with a majority vote the Constitutional Court inter alia decided not to initiate proceedings for the impugned Article 246 paragraph 1 (that is 4) of the Law on Amending the Law on Ownership and Other Real Rights (“Official Gazette of the Republic of Macedonia”, no.92/2008).

Contrary to the arguments stated in the Resolution, I believe that the concordance of the impugned Article 4 with the Constitution of the Republic of Macedonia should have been evaluated against the mutual interaction of all articles of the Constitution referred to in the application, that is, Article 8 paragraph 1 lines 3, 6 and 11, Article 29 paragraph 1, Article 30 paragraphs 1 and 3, Article 31 and Article 118, but also I believe that Article 30 paragraph 4 of the Constitution should have also been taken into consideration in the decision-making. The constitutional framework governed by these provisions provides that the fundamental values ??of the constitutional order of the Republic of Macedonia is the rule of law, legal protection of property and the observance of generally accepted norms of international law. Also, foreigners in the Republic of Macedonia enjoy freedoms and rights guaranteed by the Constitution, under conditions specified by law and international agreements (Article 29 paragraph 1), which in principle subjects the issue of ownership of agricultural land by foreigners to regulation by law, and in accordance with an international agreement. Similarly, Article 31 allows a foreign person to acquire the right to property under conditions specified by law, and under Article 118 ratified international agreements may not be changed by law. However, what must be borne in mind is also Article 30 which regulates that “the right to property and the right to inheritance are guaranteed” (paragraph 1) and that “no one may be deprived or restricted of property and the rights deriving from it, except if there is public interest determined by law “(paragraph 3), which guarantees and the enjoyment of rights and not linked only with possession of Macedonian citizenship, but rather, these rights are broadly laid down in respect of entities enjoying this right. Paragraph 4 of the same article states that “in the event of expropriation of property or restriction of property just compensation is guaranteed, which may not be lower than its market value.” In accordance with these constitutional provisions is also Article 5 of the Law on Inheritance (Official Gazette of the Republic of Macedonia, No.47/96) which stipulates that under conditions of application of the principle of reciprocity, foreign nationals have the same inheritance rights as citizens of the Republic Macedonia. Given that in this Law which is lex specialis in this matter there is no other specification of inheritance rights, it is clear that these rights are guaranteed for both citizens of the Republic of Macedonia and foreign entities.
However, vis-à-vis this constitutional framework, impugned Article 246 paragraph 1 (that is, Article 4) is absolutely prohibitive when it comes to acquiring the right of ownership of agricultural land in the Republic of Macedonia on any grounds, which was not the case with the previous legal solution. This provision practically applies to both foreign legal and natural persons who would like to acquire ownership of agricultural land and those natural persons who are not currently citizens of the Republic of Macedonia but who according to their origin are from the Republic of Macedonia and have or will have inheritance rights in it.

Due to the complexity of this issue which has been subject to international debate for a long time* I believe that for the purpose of the legal issue put before the Court, the report on this case must have taken into account numerous comparative experiences of the current member states of the European Union and the other states which have encountered this problem. I also express regret that the Court in order to obtain useful information about the subject from the other constitutional courts failed to address its request for comparative experiences to the Venice Commission.

* See in more detail the study Land Ownership and Foreigners: A Comparative Analysis of Regulatory Approaches to the Acquisition and Use of Land by Foreigners by Stephen Hodgson, Cormac Cullinan Karen Campbell, EnAct International, FAO 1999.

From the above reasons, I consider that the issue should be viewed from two aspects.

The first is the in principle put question when and under what conditions, respecting the constitutional principles and international law, and taking into account the process of integration of the Republic of Macedonia into the European Union and the phased adoption of acquis communautaire transformed into Chapter 31, the ownership of agricultural land by a foreign natural or legal person shall be enabled. It is about the process of market liberalisation which is not simple and which experienced numerous countries during their accession to the European Union (ten states in 2004 and two in 2007), and which through a series of negotiations and measures (agreed transitional periods since the moment of accession to the European Union) have adapted to the new legal context, a process that our state has yet to experience. With this act of adaptation of the national legal system with modern integration trends, thre will be an inevitable deep relativisation of the legal interpretation on which rests the Court’s view elaborated in the Resolution.

For example: In order to harmonise with the European Union regulations, in 2014 Slovakia adopted a new law, under which as of June foreigners can buy agricultural land, but there are legal requirements that apply to both domestic and foreign owners. Accordingly, foreigners would have to buy a minimum area of ??200 square meters, to be food producers, the land to be and to have been previously processed for this purpose, not to be in the vicinity or outskirts of a town, the foreigner to be resident in the country, etc. The new Member States of the European Union requested that this liberalisation be postponed in its application several years after the full membership, as follows: Poland 12 years, Hungary 7+3 years, Croatia 7 years, etc.

I believe that it is not disputed that there is a need, given that agricultural land is thing (good) of public and strategic interest for the Republic, to regulate this field with special care. If there is corresponding further development of the impugned provision, in accordance with the guaranteed constitutional principles, I believe that its constitutionality would not be questioned. But my opinion is that the reasoning contained in the Resolution in respect of the public interest being protected is not substantiated, especially when it comes to inheritance. The public interest is not possible to be justified only with the (non)existence of an “established connection of public-legal character” (it is citizenship for natural persons and affiliation for legal persons), since for foreign subjects there are and may be normed such equivalent, but also additional, special legal obligations.

The second aspect is the direct violation of the constitutionally and legally guaranteed right to inherit agricultural land that holders of foreign nationality de facto have, and that through the contested absolutely and universally prohibitive provision is denied to them, at the same time making severe discrimination between these persons and others who also have a hereditary right and are citizens of the Republic of Macedonia. In practice, taking into account migration movements in the Republic of Macedonia, this serious restriction can lead to numerous conditions of discrimination of citizens who by their origin are from the Republic of Macedonia and have acquired the citizenship of another state.

If the legal definition of agricultural land is analysed, it can be concluded that 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 is:  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.

The acquisition of the right to property of foreign persons over immovable property in the Republic of Macedonia by means of inheritance is regulated by Article 243 (paragraphs 1 and 3) of the Law on Ownership and Other Real Rights. Accordingly, foreign natural persons nationals of states that are not members of the European Union and OECD can acquire by inheritance rights to ownership of immovable property in the Republic of Macedonia under conditions of reciprocity. Foreign natural persons, citizens of member states of the European Union and OECD may acquire by inheritance rights of ownership of immovable property in the Republic of Macedonia under the same conditions as nationals of the Republic of Macedonia. It is also stipulated that foreign legal entities can, under conditions of reciprocity, acquire ownership rights over immovable property in the Republic of Macedonia by inheritance on the basis of a will.

Similarly, foreign natural and legal persons resident in Member States of the European Union and OECD may acquire ownership of an apartment, residential building and office space in the Republic of Macedonia under the same conditions as nationals of the Republic of Macedonia, while foreign natural and legal persons resident in states that are not members of the European Union and OECD may acquire the same right under the same conditions of reciprocity.
As for the acquisition of real rights of construction land by foreign persons in the Republic of Macedonia (Article 245 paragraphs 1 and 2) foreign natural and legal persons resident in Member States of the European Union and OECD may acquire the right to ownership and right to long-term lease of construction land in the Republic of Macedonia under the same conditions as domestic legal and natural persons citizens of the Republic of Macedonia, and those states which are not members of the European Union and OECD may acquire that right under the conditions of reciprocity.

It follows that the only restrictive approach the Law has concerns ownership of agricultural land by foreign natural or legal persons.

Given that under the law, ownership may be acquired on the basis of legal matter and with inheritance, but also with a decision of a competent state body in the manner and conditions stipulated by law, and inheritance has general, unspecified guarantee in the Constitution, which is properly transmitted and regulated by the Law on Inheritance, I consider that the arguments in the legal reasoning of the Resolution on the impugned provision are totally unsustainable. Under the law, all persons listed in the said legal inheritance order, as the basis for claiming the succession, after the death of the deceased become automatically (ex lege) heirs without any act of acceptance of the inheritance. Legal basis for inheritance except the statutory one may also be the testamental one, which may by a will which is strictly personal act of the testator and immediate product of his wish arrange the transfer of ownership of the property of a person in case of his death to other persons as his heirs. In both cases (statutory and testamental) the state has an obligation to ensure their implementation within the legal and constitutional principles that apply equally to both domestic and foreign entities. The legislator does not have free discretion in the regulation who (domestic or foreign person) can and who cannot acquire subjective hereditary right and therewith a right of ownership, since the Constitution differently regulates that matter.

Specific cases which in practice in their implementation could cause numerous problems are also life support contracts concluded between citizens of the Republic of Macedonia and their descendants who have acquired foreign citizenship.

Given the fact that a number of states condition their nationals not to hold another citizenship, it appears that those who in the past moved out of the Republic of Macedonia, and after leaving accepted the citizenship of the country where they are currently living, have no right to inherit property belonging to their parents or other close relatives.

The right to inheritance is a right that is real and has delayed application, and for these reasons it should (as noted in the Resolution) not be taken that in fact “the right of property does not exist” and that the impugned statutory provision is not in contradiction with the Constitution because it “is not a statutory basis for deprivation of property without any public interest.” Inheritance right is an acquired right from the day of demise of the testator, drafting the will or the date of conclusion of the contract for life support (delayed application of the law). In this case it is not about right of ownership, but the right to acquire property, by which right then by law, will or contract for life support possessions are acquired and enjoyed. And that right to acquire ownership applies and should apply equally and without discrimination to all domestic and foreign persons.

International documents noted in the Resolution (Resolution no.1803 and Resolution no.3201 the UN General Assembly) that are older date and aimed at restoring some of the conditions that were current in that time period, impose a right on States to permanent sovereignty over their natural riches and resources through effective control of the same, free from coercion. I believe that the projection and parallel the Resolution makes regarding the issue of ownership of a foreign citizen with these documents is wrong, because “effective control” and “sovereignty over natural resources” do not refer to the legal question under consideration in this case. The same situation applies to Article 1 paragraph 1 of Protocol No.1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, because the emphasis is on the “peaceful enjoyment of his possessions”, a possible limitation of this right in a real balanced “public interest under the conditions provided for by law and by the general principles of international law”, with emphasis on the right of states to use the possessions in accordance with the general interest or to secure the payment of taxes, other contributions or fines.

It is known that in rural areas in the Republic of Macedonia land is predominantly agricultural, which means that potentially, the right to inherit a person holder of foreign citizenship who comes from rural area will be significantly limited. Also, in cases of inheritance of agricultural land no legal redress is provided for according to the market value of that land, though it has constitutional basis already. It is very uncertain what would be the legal outcome of cases in which the principle of reciprocity applies, and the respective foreign state enables the right of inheritance of agricultural land by a foreign person.

World comparative experiences show that many countries allow that foreign persons exercise the right of inheritance (USA – under conditions of reciprocity, Sweden, Italy, Czech Republic, Slovenia, India, and others). In addition, some states in acquiring this right have other additional measures: the State of Indiana (USA) conditions if the person does not intend in the future to obtain US citizenship to sell the property within 5 years, up to the limit of 320 acres; Mexico, in turn, regulates informal naturalisation so that a foreigner may keep the property; in Bulgaria the successor of agricultural land should transfer it within a year, and so on.

Taking into account the abovementioned arguments and open dilemmas, I consider that the impugned Article 246 paragraph 1 (that is, 4) of the Law Amending the Law on Ownership and Other Real Rights were to be annulled, in order to ensure consistent application of the Constitution and its principles.

Dr Natasha Gaber-Damjanovska
Judge at the Constitutional Court

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On the basis of Article 25 paragraph 6 of the Rules of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.70/1992), upon my voting against the Resolution U.br.16/2014, adopted on 3 June 2015, for non-initiation of proceedings to appraise 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), I separate and explain in writing the following

S E P A R A T E   O P I N I O N

The Constitutional Court of the Republic of Macedonia acting on the application of the applicant Dragan Pejikj, lawyer from Skopje, for initiation of proceedings to appraise the constitutionality of Article 4 of the Law Amending the Law on Ownership and Other Real Rights (Official Gazette of the Republic of Macedonia, No.92/2008) by a majority vote adopted a Resolution not to initiate proceedings for assessing the constitutionality of the impugned provision of the law, because it held that the provision was on all grounds in accordance with the Constitution. Expressing disagreement with that resolution I voted against and separate my dissenting opinion, as I consider that the impugned provision of the Law is inconsistent with the Constitution, for which reasons the Court should have initiated proceedings for assessing its constitutionality and on the basis of deriving legally sustained arguments to have made a correct decision.

I base my dissenting opinion on the view that the Court’s decision is contrary to Article 8 paragraph 1 lines 3, 6 and 11 (the rule of law as a fundamental value of the constitutional order, legal protection of property and the observance of generally accepted norms of international law), Article 9 paragraph 2 (principles of equality of citizens before the Constitution and laws), Article 29 paragraph 1 (Foreigners in the Republic of Macedonia enjoy freedoms and rights guaranteed by the Constitution, under conditions specified by law and international agreements), Article 30 paragraphs 1 and 3 (guarantee of the right to property and right to inheritance, no one can be deprived of property or of the rights deriving from it, except in the case of public interest defined by law), Article 51 paragraph 1 (in the Republic of Macedonia laws shall be accordance with the Constitution.) of the Constitution of the Republic of Macedonia.

On the other hand, one of the more relevant conditions in the negotiations with the EU is the free movement of capital, EU requires the applicant states to implement liberalisation of capital movement.

Given the fact that in its resolution the Court did not refer at all to a comparative analysis of the issue  concerned in other countries, I consider it necessary in my further elaboration to give examples from more states in order to obtain fair representation.

Legal solutions in the area of ??acquisition of the right to long-term lease of agricultural land is almost identical in all European countries; all countries provide long-term lease of agricultural land with some minor differences.

In Austria, there is no single solution to acquire ownership of agricultural land nationwide. Austria has nine provinces. All provinces provide that a foreigner may acquire the right of ownership of agricultural land, the only difference is in the procedure and previous approvals by the competent committees and bodies.

Foreigners or EU citizens are equal with citizens of Austria, and if the foreigner is not equal with the domestic person then approvals from the relevant authorities are required as a prior condition for acquiring the right of ownership.
So, in principle, Austria categorically does not exclude foreigners from the right to acquire ownership of agricultural land, or more specifically it permits them with prior approval from the state authorities, if it considers that the sale endangers the national interest and must be in concordance with the cultural, economic and social interests.

In France, there are two ways of acquiring ownership of agricultural land. Citizens of an EU member state are equal with nationals of France. On the other hand, those who are not nationals of the EU are subject to Article R333 (of the Law on Agriculture and Sea Fishing), which stipulates that the corresponding citizen can acquire the right to ownership of agricultural land provided he has special permission from the Minister of Agriculture.

Baltic states in the negotiations took up the position that following the EU accession they would keep the existing regulations in this field for seven years and after the expiration of the said deadline if it is established that the economy may be disturbed the European Commission upon their request may extend the deadline to up to further 3 years. All deadlines expired (2014).

Estonia stipulates that citizens of Estonia and citizens of States Parties to the Agreement on the European Economic Area (EEA – in addition to EU member states Norway, Iceland and Liechtenstein are included) and citizens of the OECD countries have the right to acquire right to ownership of agricultural and forest land without restriction (Article 4 of the Law on Restriction in Acquiring Real Estate from 23.02.2012). These wide powers enjoyed by citizens of Estonia give equal treatment also to citizens of the European countries that are not EU member states (Norway, Iceland, Liechtenstein, Switzerland and Turkey) as well as citizens of countries that are not on the European continent (Canada, Chile, New Zealand, Mexico, Japan, South Korea, Israel and the United States). On the other hand, Latvia foresees that in addition to the citizens of these countries the citizens of member states of the NATO alliance also have the right to property. Lithuania also stipulates that in addition to the citizens of these states persons who have permanent residence in the Republic of Lithuania and are not its nationals have the right to acquire agricultural land.

Poland allows acquisition of the right to ownership of agricultural land to foreigners under the prior approval of the Ministry of Interior, Forestry or Environment (pursuant to the provisions of the Law on Acquisition of Ownership of Land from 24 March 1920).

On the other hand, as of 1 May 2016 nationals of the EU member states and countries that are members of the European Economic Area (EEA) will be able to acquire the right to ownership of agricultural land in the same way as the citizens of Poland.

With the signing of the Stabilisation and Association Agreement, Montenegro committed itself to equalise EU citizens with its nationals when it comes to acquiring the right to ownership of real estate. With the law on property-legal relations of 2009 and with the entry into force of the Stabilisation and Association Agreement of 2010 citizens of EU Member States are equal with the citizens of Montenegro. In Montenegro there is a restriction to the acquisition of real estate by foreigners, including the acquisition of agricultural and forest land. However, this restriction does not apply to citizens of the EU and EEA because of the Stabilisation and Association Agreement of Montenegro. In Montenegro there is restriction for foreigners who are not from the EU and EEA member states on the acquisition of agricultural land, except that foreigners may acquire agricultural land of up to 5,000m2 provided the subject of the acquisition of the apartment building is located on that land.

Switzerland allows foreigners to acquire land rights with prior approval by the competent authorities (in accordance with the federal law on the acquisition of land by foreigners, the law known as Lech Koller).

In Ireland foreigners are equal to domestic citizens. There is no restriction for foreigners. Everyone can acquire the right to property under the same conditions.

In Romania there is a special law for acquiring the right to ownership of agricultural land by foreigners. Romania’s Constitution guarantees the right to ownership of land.

Also, Hungary with its Law on Trade in Agricultural and Forest Land (of June 2013) allows foreigners the right of ownership of agricultural land. There are various limitations of subjective and objective character, a certain amount, etc.

In Slovakia, under the Foreign Currency Exchange Law (Article 19 a) non-residents of the Slovak Republic are entitled to acquire the right to ownership of agricultural and forest land, unless that right is limited by specific regulations. The required condition is a longer stay, primary occupation in the last three years to be agricultural activity, kinship relationships with the seller, and other conditions. On the other hand, Slovakia joined the EU in 2004. With the agreement it has assumed a responsibility to liberalise the sale of agricultural land within 7 years. After the expiration of this period, the Slovak authorities requested another 3 years for complete liberalisation. Since 2014 in Slovakia in principle any person may acquire agricultural land.

Nearly identical regime is applied in the Czech Republic. From 2004 to 2011 the regime for acquisition of the right of ownership of agricultural land was liberalised. Since 2011 foreigners have been allowed to acquire a right of agricultural land.

In the Republic of Slovenia with the signing of the Stabilization and Association Agreement there is no restriction for the acquisition of the right of land to foreigners nor did Slovenia request a transitional period to harmonise its laws, as the case was with other countries that acceded to the EU in 2004. The only constitutional requirement for acquisition of the right of ownership over land for EU member states is the existence of reciprocity. This rule also applies to the candidate countries for EU membership if the Republic of Slovenia has reciprocity with them. While on the basis of inheritance, on the condition of reciprocity third-country nationals may acquire real estate in the Republic of Slovenia.
In Croatia, currently foreigners may not acquire right of ownership over agricultural land. After the accession of Croatia to the EU under the agreement this right will have to be liberalised within 7 years and after the expiration of this period foreigners will be enabled to acquire the right of ownership of agricultural land. On the basis of reciprocity, foreigners can acquire the right of ownership through inheritance.

In England, foreigners are equal with its nationals in acquiring the right to ownership of agricultural land, the distinction between domestic and foreign persons being only in the tax system.

From the above examples and comparative analyses it results that in most European countries foreigners are allowed to acquire the right of ownership of agricultural land and in the same way as their own citizens. In some states this right is recognised only to citizens of EU member states, in some states this right is also granted to citizens of the EEA, OECD and NATO. In some states there is a restiction in terms of volume, in some countries the buyer is required to have previously carried out an agricultural activity, in several countries all foreigners are allowed to acquire the right of ownership of agricultural land with prior approval by the competent authorities.

On the other hand, in some countries where there is a certain restriction it is in particular pointed out that while there are restrictions through inheritance on the condition of reciprocity foreigners are allowed the right of inheritance of agricultural land.

Only in the Republic of Serbia and Republic of Macedonia is there an absolute restriction of the acquisition of the right to agricultural land.

Chronologically almost all new countries acceding to the EU, some of them with the start of negotiations, some of them by becoming a member, and some for a period of 7 to 10 years following the accession fully liberalised their internal norms and foreigners are recognised the right of ownership of agricultural land as their own citizens.

I find to be justified the efforts of the legislator to protect national interests and other values, but the feelings and care are not obtained with prohibitions and constitutional restrictions, as the current definition of the law “foreign natural and legal persons may not acquire the right to ownership of agricultural land in the Republic of Macedonia”, Article 246 paragraph 1. Instead of following the example of many countries that have more liberal approach to this issue, unfortunately there is an absolute prohibition in our country.

Hence, in my opinion the said provision is too strict, contrary to Article 8 paragraph 1 lines 3, 6, 11, where the fundamental values ??of the constitutional order and basic constitutional norms have an expression of the political philosophy of a modern civil society. The fundamental constitutional values ??illuminate the concept, structure and content of the Constitution. In the Republic of Macedonia everything that is not prohibited is allowed.

On the other hand, the rule of law implies that all acts of state bodies must be based on the regulations contained in the highest legal act of the State – the Constitution – and all bodies of government must adhere to the Constitution and law.

It is not incidental that the Constitution envisages legal protection of property as a fundamental value, which receives treatment of a highest legal protection to the same extent as the protection of freedoms and rights of citizens.

Finally, the Constitution affirms as a special fundamental value the respect for the generally accepted norms of international law. With the very belonging and membership in international organisations every country accepts the rules and standards of behavior that are established in that community. International rules oblige entities to which they refer. States have an unambiguous obligation to accept certain rules of international law, and some states even give them a higher status than their own regulations.

Also, this statutory provision is contrary to the whole spirit of the Law of Inheritance, and in particular Article 5 of the Law, which regulates the inheritance rights of foreigners and reads: “Foreign nationals in the Republic Macedonia have the same inheritance rights as nationals of the Republic Macedonia, provided that the principle of reciprocity is applied.”

On the other hand, the said principle of reciprocity is in collision also with Article 243 paragraph 2 of the Law on Ownership and Other Real Rights, “Foreign natural persons, citizens of member states of the European Union and the OECD, may, by means of inheritance, acquire rights of ownership over real property in the Republic of Macedonia on the basis of an inheritance will.”

The said paragraph does not require “reciprocity” and the current Law on Inheritance as lex specialis imperatively provides for the reciprocity requirement.

Also, the said statutory solution is in collision with the institution necessary heirs. The impugned article excludes from the right to inheritance of agricultural land the necessary heirs who are not citizens of the Republic of Macedonia. In science there are several theories for the justification of the necessary legal inheritance. These are: Theory of tacit fideicomis; Theory of family property; Theory of family solidarity and Theory of alimony.

All theories have as a starting point the premise that each individual is part of the family pillar and all goods and benefits that the individual uses are the result of the efforts of several heirs. Therefore, the testator is obliged to leave part of his estate to his legal heirs. In some theories the principle of collectivism occurs before the principle of family succession. In the second one, property is the result of the efforts of several generations. In another theory the prevailing view is that property is part of the unity of family members, members of the family shall be obliged to assist other members of the family. At the end, some of the theories envisage that the testator has the obligation towards certain circle of people in terms of their livelihood.

From what has been noted, it arises that the weight of the principle of necessary succession is the result of a family property, family solidarity and obligation for maintenance, but unfortunately the adopted resolution is in contradiction also with the entire institute of necessary heirs in inheritance law.

A second problem, in my opinion, is the hereditary-legal position of heirs and the position of hereditary community. The hereditary community occurs among the heirs of the testator, over the goods subject to inheritance (communio incidents). According to our legislation, pursuant to Article 82 of the Law on Ownership and Other Real Rights, the institute of joint property emerges among the heirs in the hereditary community who have not renounced inheritance until the decision on inheritance becomes final. Hence, it appears that the status of a heir is acquired by virtue of the law at the time of death of the testator, and not at the moment when a person, a possible heir, makes a statement that he accepts the legacy of the testator. In legislation the key is the moment of the death of the testator. According to this point, the time of death of the testator is a moment when the inheritance is opened and the legacy is transferred to the heirs, the composition of the legacy, legal or testamental heirs are determined, universal and singular heirs are determined and according to this element capability and suitability of inheritance are judged. Thus, the legacy passes on his heirs at the time of his death. In our Law and other modern world inheritance legal systems the inheritance statement has no constitutive character. One becomes a heir at the time of death of the testator.

Accordingly, and taking into account the aforementioned, the question is what will happen with the right, position and role of the heir who is not a citizen of the Republic of Macedonia in the inheritance community.

On the other hand, if we accept the current legal solution the question is what will happen with the rights of foreign nationals whose parents is a citizen of the Republic of Macedonia, who in a community with his/her own work and resources contributed to the increase of agricultural land and is not entitled to inheritance, thereby depriving them with this legal solution of their constitutional and statutory right of inheritance they are entitled to. This provision violates the fundamental value of protection of the right of ownership. The court, that is, notary as trustee of the court in inheritance proceedings (out-of-court proceedings) has a declaratory role, that is, establishes that a person has died, that a person has left or not left movable or immovable property and establishes the legal or testamental heirs.

Also, I consider that the legislator should have taken into account that in Macedonia we still have permanent living community. Assuming in such a community where parents manage the property of the community, one of the heirs is not a citizen of the Republic Macedonia, and with whose money given in such a community significant area of ??agricultural land is formed, and he is the sole heir to the parent and after the death of the testator he is declared as sole heir, and the entire property consists of agricultural land. Thus, he will face the current legislation and will not be able to be heir. Or as there are cases in the villages in the Republic of Macedonia, the houses are built on agricultural land and are built with assets and contribution from the community of the heir himself/herself, and after the death of the testator the heir who does not hold citizenship of the Republic Macedonia due to the fact that his/her house is located in agricultural land will not be able to acquire the right of ownership of the house built on agricultural land.

For these reasons, based on the presented analysis of the constitutional and statutory provisions, the international acts and comparative insights, the strong arguments for inconsistency of the challenged provisions with the Constitution and the circumstance that the Court did not initiate proceedings for assessing the constitutionality, pursuant to Article 25 paragraph 6 of the Rules of Court I separate my dissenting opinion regarding the decision on non-initiation of the proceedings.

Sali Murati
Judge at the Constitutional Court of the Republic of Macedonia

Resolution U.no.16/2014

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