Constitutional Court: Protection of UNESCO site takes precedence over investors’ interests
The Constitutional Court of Montenegro has rejected five constitutional appeals concerning the refusal of applications for construction permits in the Natural and Cultural-Historical Region of Kotor, a site inscribed on the UNESCO World Heritage List, ruling that the protection of the UNESCO-listed area takes precedence over the interests of investors.
According to a statement issued by the court, the applicants argued that, at the time they submitted their requests, they had met all legal requirements for obtaining construction permits, but that their applications were rejected based on regulations adopted after the requests had been filed. They claimed that this had violated their right to a fair trial and their right to peaceful enjoyment of property.
- The Constitutional Court did not accept these arguments. It upheld the position of the ordinary courts that the mere submission of an application for a construction permit does not create an acquired right to the issuance of a permit, nor does it create an obligation on the part of the state to issue one. The Constitutional Court noted that construction bans were introduced in order to protect the Natural and Cultural-Historical Region of Kotor, which has been inscribed on the UNESCO World Heritage List since 1979, and that the protection of this area represents a legitimate public interest - the statement said.
The court concluded that applying the regulations in force at the time the construction permit applications were decided did not violate either the Constitution or the European Convention on Human Rights.
- The applicants also argued that the regulations had been applied retroactively. However, the Constitutional Court found that this was not a case of retroactive application, but rather the implementation of international obligations undertaken by Montenegro through the ratification of the Convention Concerning the Protection of the World Cultural and Natural Heritage - the court stated.
The Constitutional Court decisions state that „the obligation to protect cultural heritage was established by the Convention Concerning the Protection of the World Cultural and Natural Heritage, which takes precedence in application“.
- The decisions on the basis of which construction permits were not issued represent the fulfilment of Montenegro’s obligations under that Convention, and therefore this cannot be considered retroactive application. The Constitutional Court accepted the assessment of the ordinary courts that any other interpretation would mean giving priority to the interests of individual investors over the public interest of protecting an area under international UNESCO protection – the statement reads.
The Constitutional Court recalled that Kotor has been included on the UNESCO World Heritage List since 1979, and that Montenegro has in previous years been warned about the risk that uncontrolled urbanisation and the degradation of the cultural landscape could lead to the loss of this status.
- According to UNESCO’s recommendations, it was necessary to adopt decisions that would prevent further degradation of the natural and cultural heritage through unplanned and excessive construction. The preservation of Kotor undoubtedly is, and must remain, a matter of public interest - the Constitutional Court quoted from its decisions.
The court concluded that the interference with the applicants’ right to peaceful enjoyment of property pursued a legitimate aim in the public interest, and that by submitting applications for construction permits, the applicants did not acquire a right that would enjoy constitutional protection as an acquired right.