STEGA: Government proposes amendments to law that would allow cemeteries to become private or church property

An informal civic association, gathered to draft the Strategy for a European and Civic Montenegro - STEGA, warned in an open letter to Prime Minister Milojko Spajić that accepting the amendments to the Law on State Property proposed by the Government would create assumptions that cemeteries could also be in private, which means church, ownership, which would strengthen previous illegal registrations of property rights in the name of religious organizations and communities.

"We are aware that the Government of Montenegro has proposed amendments to the Law on State Property. In this regard, the Government has also accepted the amendment of the NSD MP Mr. Đoković, which intends to change the current property and legal regime of cemeteries by changing their status.

In this regard, we warn you that the planned amendment to the Law on State Property seeks to circumvent the application of Article 58, paragraph 3 of the Constitution of Montenegro, which refers to the property regime of 'natural resources and goods in general use' for cemeteries," the letter to STEGA states.

This organization also offered an explanation. They say that the Constitution of Montenegro, in Article 58, paragraph 3, states: "Natural resources and goods in general use are state property," and that, accordingly, these goods cannot be privately owned.

According to Art. 16, paragraph 1, line 6 of the current Law on State Property, "cemeteries are local assets in general use that are at the disposal of municipalities". This means that all cemeteries in Montenegro are state-owned, so according to the Constitution of Montenegro, they cannot be objects of private property. This means that they cannot be owned by religious communities or other private legal entities, STEGA explains.

"By accepting the amendment, the legal status of cemeteries is changed in such a way that cemeteries, as 'local assets in general use at the disposal of the municipality', are treated as 'other local assets of general interest at the disposal of the municipality'. This creates the basis for changing the property and legal regime of cemeteries, as 'assets in general use', as established in Article 58, paragraph 3 of the Constitution of Montenegro and Article 16, paragraph 1, indent 6 of the Law on State Property.

"The proposed term: 'cemeteries on municipal property' covertly creates assumptions that cemeteries that are not on municipal property will be introduced into the legal system of Montenegro. This is unacceptable and reveals the true intention of the proposer. This creates assumptions that cemeteries can also be privately owned, which means also church property. This is intended to strengthen (convalidate) previous illegal registrations of property rights in the name of religious organizations and communities," the letter states.

STEGA specifically emphasizes that the explanation of the amendment, which states that "the use of cemeteries is not carried out without special permits and approvals from the competent authorities," actually seeks to hide the essence of the amendment, which is the change in the ownership regime of cemeteries from the regime of exclusive and only possible state ownership to the regime of private, or church, ownership.

"We further emphasize that the term 'use of cemeteries' is much broader than the meaning given to it by the proposer of the amendment. The use of cemeteries implies, first of all, the right of citizens to visit the graves of their loved ones, which is available to everyone under equal conditions and which takes place without special permits and approvals from competent authorities. This type of use is everyday, massive and most common.

"The fact that consent from the competent authority is required for some types of use does not, in itself, call into question the general rule that these goods are available to everyone under equal conditions (Article 10, paragraph 1, item 10 of the State Property Law)," Stega points out.

They add that, after all, for some other goods in general use (which Montenegro and local self-government units have at their disposal), the legislator often prescribes certain types of use with appropriate permits and approvals, which does not call into question their status as goods in general use.

"Such 'goods in general use' include, for example: airspace, roads, airports, ports, breakwaters, water supply and sewage infrastructure, public and green areas, etc. Permits and approvals can and do apply for some aspects of their use, but this does not change their legal status as goods in general use. Therefore, the question arises with reason: why is the legal status only changing for cemeteries?!

"The proposed amendment seeks to change the status of cemeteries in a legally impermissible and roundabout (fraudulent) way from the status of goods in general use (which are exclusively state property) to the status of goods of general interest that can also be privately owned," STEGA states.

They said that, due to the possibility that Spajić himself was not fully informed or that his legal team did not do so, they are publicly warning him in this way and asking the government to withdraw this proposal due to the extremely large number of negative and very dangerous consequences of the proposed and accepted amendment by the Government.

"At the same time, we publicly warn and call on citizens not to allow the existing property and legal regime on the graves of their deceased to be changed and to monitor the actions of the Government and Parliament on this issue with the utmost concern."

We call on local self-government units (which, with the proposed solution, could lose their status as holders of the right to dispose of many cemeteries in Montenegro), the Montenegrin Academy of Sciences and Arts, law faculties in Montenegro, the Association of Lawyers of Montenegro, NGOs and the entire professional and academic community to study, interpret and treat this issue with special attention, and with their institutional and professional authority point out the danger and overall consequences of the aforementioned amendment to the Law on State Property.

"It is everyone's obligation not to disturb the tranquility and eternal peace of our deceased, to ensure that cemeteries are not subject to daily political abuses, and that divisions do not reach our graves," the statement concludes.