Law on Legalization of Buildings – Breach of Rules and Corruption Risks

The announced adoption of the draft law introducing a new framework for the legalization of buildings at tomorrow’s session of the Government of Serbia would constitute a violation of several laws and of the Government’s Rules of Procedure, since no public debate was held and no corruption risk analysis was conducted in advance.

The proposed legal solutions reward the commission of criminal offenses, since building without a permit has been a crime since 2009 and if the Government adopts them tomorrow, all prescribed procedures will be breached. According to the statement of the relevant minister, Aleksandra Sofronijević, the Government is expected to adopt a draft law prescribing special conditions for legalization, which would then be passed by the National Assembly in an urgent procedure. In doing so, first the Ministry and then the Government itself would violate the explicit obligation arising from the Law on Public Administration and the Government’s Rules of Procedure. Under these acts, a public debate is mandatory in cases of adopting or amending a law if at least one of two conditions is met—when the subject matter of the law is regulated in a significantly different way, or when the issue is of particular public interest. Although both conditions are clearly fulfilled, the Ministry not only failed to organize a public debate but has not even published the draft law to this day.

The first information about these legal changes was presented at a press conference of the President of the Republic, although this state authority has competence only after the Assembly adopts a law, not before the ministry has even drafted it.

The urgency and secrecy of adoption are being justified by the need to prevent a “boom in illegal construction,” while at the same time the minister claims that the amendments have been under preparation for a long time and that various institutions have been involved in the process. This statement, in fact, amounts to an admission that the Ministry and other state bodies have failed to perform their duties for decades. Moreover, the fact that information about legalization was not made available to all illegal builders does not guarantee that it was not available in previous months to those who could obtain it through institutions or individuals involved in drafting the law. Claims of urgency are even less convincing given that the current government adopted a similar law in 2015. Back then, 1.5 million illegal buildings were cited; today, the figure exceeds four million—evidence that the previous law did not achieve its stated goals, and there is no reason to expect this new law will produce different results.

The corruption risks in this draft law stem primarily from the fact that illegal builders will be privileged over citizens and businesses that respected the regulations. Over the past decade, dozens if not hundreds of investigative journalistic reports, supported by documentation, have exposed illegal construction of apartments and commercial premises, often pointing to investors who were individuals or companies owned by people close to the ruling authorities. Therefore, with the announcement of this law, a legitimate question arises: is its purpose to allow ordinary citizens to legalize their individual properties, or is it being adopted primarily in the interest of large investors? We remind that only two years ago, controversial amendments to the Law on Planning and Construction were adopted, introducing free conversion of usage rights into ownership rights. To this day, however, the Ministry has not published the list of the “lucky beneficiaries” of this change, despite being asked to do so by the minister in charge before adoption.

It should not be forgotten that an indictment was recently filed in connection with one case of unlawful legalization in Belgrade, precisely in one of the cases that investigative journalists had reported on.

Against this background, an even greater problem is that no corruption risk analysis has been carried out in relation to this draft law. The Ministry had a legal obligation to submit the draft to the Anti-Corruption Agency for such an analysis, but there are no indications that this was done. Thus, it is to be expected that the Government will adopt the draft law without considering the risks of corruption. This is especially absurd given that the same Government has adopted strategic documents for fighting corruption in which the sector of “construction and spatial planning” is recognized as one of those most affected by corruption.