Constitutional Court rejects appeals: Protection of UNESCO sites takes precedence over investor interests

The Constitutional Court of Montenegro has rejected five constitutional appeals related to the rejection of requests for issuing construction permits in the natural and cultural-historical area of ​​Kotor, which is on the World Heritage List of the United Nations Educational, Scientific and Cultural Organization (UNESCO).

"The constitutional complainant claimed that at the time of submitting the request he met the legal requirements for issuing building permits, but that his requests were rejected by applying regulations enacted after their submission. He believed that his right to a fair trial and the right to peaceful enjoyment of property were thus violated," the court explained in a statement.

The Constitutional Court did not accept these allegations. It confirmed the position of the regular courts that the mere submission of an application for a building permit does not create an acquired right to issue a permit, nor does it create an obligation on the part of the state to issue one.

The Constitutional Court pointed out that the construction bans were introduced to protect the natural and cultural-historical area of ​​Kotor, which has been on the UNESCO World Heritage List since 1979, and that the protection of that area represents a legitimate public interest.

"Therefore, the application of the regulations in force at the time of deciding on the request for a building permit was not contrary to the Constitution or the European Convention on Human Rights," the court points out.

The constitutional complainant also pointed to the alleged retroactive application of the regulations.

The Constitutional Court, however, assessed that in this particular case it is not a matter of retroactive application, but rather of fulfilling international obligations that Montenegro assumed by ratifying the Convention on the Protection of World Cultural and Natural Heritage.

The decisions of the Constitutional Court state:

"The obligation to protect cultural heritage is established by the Convention on the Protection of the World Cultural and Natural Heritage, which has primacy in its application. Decisions based on which a building permit was not issued represent the fulfillment of Montenegro's obligations in relation to that Convention, so there can be no question of retroactive application."

The Constitutional Court accepted the assessment of the regular courts that a different interpretation would mean giving priority to the interests of individual investors over the public interest in protecting areas that enjoy international protection by UNESCO.

The Constitutional Court recalled that Kotor has been on the UNESCO World Heritage List since 1979, and that Montenegro has been warned in previous years of the danger that this area could lose that status due to uncontrolled urbanization and devastation of the cultural landscape.

The decisions state, among other things:

"According to UNESCO's instructions, it was necessary to make decisions that would prevent further devastation of natural and cultural assets through unplanned and excessive construction. The preservation of Kotor undoubtedly is and must be a public interest."

The Constitutional Court concluded that the interference with the applicant's right to peaceful enjoyment of property was aimed at achieving a legitimate aim in the public interest, and that by submitting an application for a building permit, the applicant had not acquired a right that would enjoy constitutional protection as an acquired right.