Nišavić: Constitutional Court to urgently decide on the constitutionality of the Law on Legalization of Illegal Buildings

Lawyer Miloje Nišavić called on the Constitutional Court of Montenegro to decide without delay on initiatives to review the constitutionality of the Law on the Legalization of Illegal Buildings, assessing that months of inaction on this issue creates serious legal uncertainty for a large number of citizens.

In a statement submitted to "Vijesti", Nišavić stated that back in September last year he had submitted an initiative to review the constitutionality of certain provisions of that law, and that similar initiatives had been submitted by other entities, but that the Constitutional Court had not made a decision to date.

"This is an issue that affects one of the fundamental human rights guaranteed by the Constitution - the right to property, which is why I expect the Constitutional Court to act urgently," Nišavić said.

He believes that the disputed provisions of the law are inconsistent with the Constitution because, as he claims, they are retroactively applied to citizens' already acquired rights and limit owners' one of the basic powers arising from the right of ownership - the right to dispose of property, which is why he expects the Constitutional Court to act urgently.

"The right of ownership represents the most complete legal authority over things. The owner must have the right to use, enjoy and freely dispose of his property, except in cases where the Constitution explicitly allows restrictions under strictly prescribed conditions. The state cannot solve administrative and urban problems by shifting the burden of its own failures onto citizens and limiting their constitutional rights," he said.

Nišavić reminded that the problem of illegal construction did not arise overnight and that at the time such facilities were being built, the state had institutions that were obliged to prevent illegal construction.

"During that period, the state had inspection bodies, local government bodies, urban planning services and other competent institutions that were obliged to react in a timely manner and prevent the creation of illegal structures. If the institutions did not do their job when they were supposed to, that failure today cannot be a reason to limit the rights of conscientious owners and to encroach on the constitutionally guaranteed right to property. Citizens must not bear the consequences of institutional failures," the lawyer stated.

He warned that the state would suffer serious financial consequences for unconstitutionally restricting the rights of property owners.

"I am convinced that the disputed provisions of the Law are inconsistent with the Constitution of Montenegro. When the Constitutional Court confirms this, the issue of state liability for the damage suffered by citizens due to months of restrictions on the disposal of their property will inevitably arise. Such claims for damages can have significant consequences for the state budget, and responsibility for this will not lie with those who adopted unconstitutional solutions, but with all citizens of Montenegro," said Nišavić.

Precisely because of the severity of the legal and economic consequences, the lawyer added, the Constitutional Court must no longer delay its decision.

"The Constitutional Court exists to protect the Constitution, legality and the rights of citizens. Its duty is not to take into account the political suitability of its decisions or the interests of any ruling majority. Citizens have the right to receive a clear answer as to whether a law restricting the disposal of private property is in accordance with the Constitution or not. The Constitutional Court must demonstrate full independence and authority and decide on these initiatives without further delay, regardless of who politically liked such a decision and who did not. The rule of law implies that the Constitution is above all authority. Therefore, I expect the Constitutional Court to make a decision as soon as possible and eliminate the state of legal uncertainty that has lasted too long for such an important constitutional issue," concluded Nišavić.