So far, six initiatives have been submitted to the Constitutional Court of Montenegro to review the constitutionality of the Law on Legalization of Illegal Buildings, submitted by lawyers, natural and legal persons, non-governmental organizations and one foreign person.
This was officially confirmed to "Vijesti" from this court, with the explanation that either the entire law or Article 33, paragraph one, is being challenged.
The most public attention has been drawn to Article 33, paragraph 1 of this law, according to which a building constructed without a construction act or contrary to that act cannot be in legal circulation, that is, it cannot be alienated, and no economic or other activity can be carried out in it, and Article 2, according to which an illegal building that is not registered in the real estate cadastre or for which a legalization decision is not issued in accordance with this law cannot be alienated, and no economic or other activity can be carried out in that building.
The law, which was adopted by the Parliament at the end of July, entered into force on August 14, and the entire process is already behind schedule. The legalization procedure has been slowed down even two months after the law entered into force because the cadastre and municipal services, due to the lack of satellite and aerial photogrammetric images, only receive but do not process requests. The Ministry of Spatial Planning expects to receive the ortho-photo image in early November, and the legal deadline for its publication was September 14. The spatial protection inspection, which is supposed to control the implementation of the law, has not been formed, and twice no one responded to the ministry's tender for the development of a Strategy for the Legalization of Illegal Buildings with an Action Plan for the period from 2026 to 2030.
They are waiting for a response from the Parliament and the Government.
"A preliminary procedure is underway, within which initiatives have been submitted to the Government and the Parliament, in order to respond to the allegations raised by the applicants. The deadline for a response is 30 days and it has not yet expired. For reasons of procedural economy, all initiatives have been consolidated, in order to conduct a single procedure and make a decision at this stage of the procedure, we cannot provide more information, and we will inform you about further steps in a timely manner," the Constitutional Court said.
Ministry of Spatial Planning, headed by the Minister Slaven Radunović issued an opinion that was sent to the Chamber of Notaries and the Chamber of Public Bailiffs, which emphasized that the traffic ban applies to all facilities, while notaries and public bailiffs believe that it cannot apply to facilities that are subject to pledge and execution.
One of the petitioners to the Constitutional Court is also a lawyer. Miloje Nišavić from Budva who submitted a document to "Vijesti" in which he stated that he was requesting the initiation of proceedings to review the constitutionality of Article 33, paragraphs 1 and 2 of the Law on the Legalization of Illegal Buildings, which prohibits the legal sale of illegally constructed buildings, as well as the performance of activities.
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Property rights infringement
"Given the interpretation of the disputed legal provision by the Ministry of Spatial Planning, Urbanism and State Property, this ban also applies to facilities built before the law came into force, regardless of whether the legalization process has been initiated for them," Nišavić stated in the initiative.
As a reason for unconstitutionality, he cites “violation of property rights” from Article 58 of the Constitution of Montenegro.
"The prohibition of legal transactions of real estate that is actually owned by a person, without a court decision and without compensation, represents a disproportionate and automatic restriction of property rights, contrary to Article 58 of the Constitution of Montenegro as the highest legal act in the country, which guarantees "the right to property shall be guaranteed, no one may be deprived of or restricted from property rights without compensation". Therefore, Article 33, paragraphs 1 and 2 of the Law on Legalization of Illegal Objects is inconsistent with Article 58 of the Constitution of Montenegro, as well as with Article 1 of Protocol No. 1 to the European Convention on Human Rights, which guarantees the right to peaceful enjoyment of property - property. With the disputed legal provision, the legislator prevents the owner from peaceful enjoyment of property, in which way he has sharply, crudely and boldly violated the principles of legality, proportionality and legal certainty", Nišavić pointed out.
He also points out that Article 147 of the Constitution - retroactive application of laws - has been violated.
Controversial retroactivity
"With the scandalous, neoliberal and bizarre interpretation of the disputed provision by the relevant Ministry, the ban also applies to buildings built before the law entered into force, which means that the law is applied retroactively, which is contrary to the provisions of Article 147 of the Constitution of Montenegro, which stipulates that "the law cannot have retroactive effect". Even if the law explicitly provides for retroactivity, which is not the case in this specific situation, it would be allowed only if it is in the general interest and if it is justified, which has not been proven in any way here and cannot be justified," said Nišavić.
He also claims that the law violates legal certainty and legal equality, Articles 17 and 19 of the Constitution.
"The controversial legal provision that this initiative seeks to assess does not distinguish between buildings that can be legalized and those that cannot, buildings that are built on urban-planned plots and those that are not, buildings that are the subject of successive inheritance, donation, family agreement, and the like. Also, this regulation creates legal uncertainty, because the status of one person's property is placed in a state of legal unusability, without that person having previously been heard in the proceedings, nor having been given the opportunity to protect their rights," stated Nišavić.
Consequences
He also pointed out the consequences of the possible survival and application of the disputed norm.
"Natural and legal persons who are owners of illegally constructed buildings, even those that have been in use for years or even decades, cannot dispose of their property. The disputed legal provision creates the impossibility of inheritance, gifting, selling or pledging, and thus jeopardizes other rights, such as the right to a home, family rights, economic freedom, the right to access the market and the like," Nišavić stated.
He added that creditors in collection queues, notaries and other legal entities have been put in a state of legal uncertainty, because the legislator is introducing a ban on trade without a clearly defined implementation mechanism, such as a record, administrative act, court decision and the like.
"Consequently to the above, considering all the circumstances together and each one individually, I propose that the Constitutional Court of Montenegro initiate proceedings to review the constitutionality of Article 33, paragraphs 1 and 2 of the Law on Legalization of Illegal Buildings and to determine that the aforementioned norm is unconstitutional, because it retroactively restricts the right to property, does not meet the standards of proportionality, and violates legal certainty and legal equality of citizens," emphasized Nišavić.
"The disputed legal provision creates the impossibility of inheritance, gifting, selling or pledging, and thus jeopardizes other rights, such as the right to a home, family rights, economic freedom, the right to access the market, and the like," the lawyer added.
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