Penal offense filed against MESP Secretary for Badovc

31 January 2020

31 January, 2020 - Balkan Green Foundation (BGF), Group for Legal and Political Studies (GLPS), Institute for Development Policy (INDEP) and GAP Institute, today, on 31st of January 2020, filed a criminal report against the Secretary General at the Ministry of Environment and Spatial Planning (MESP) for its actions regarding the case of construction in the Badovc Lake area.

Legal and Policy Studies Group (GLPS); Balkan Green Foundation (BGF); Institute for Development Policy (INDEP); GAP Institute, consider that

First, the Office of the Secretary General of the MESP has unlawfully obliged the Directorate of Urbanism in the Municipality of Prishtina to process a request for construction conditions by invalidating Articles 20 and 21 of the Law on Construction. This is because it obliged the Directorate of Urbanism in the Municipality of Prishtina to act by circumventing the decision of the Government of Kosovo no. 16/127, dated 24.04.2013, which expressly, in Article 11, paragraph 4, subpar. 4.3, the area which is required for the issuance of construction conditions is designated as a prohibited area for construction.

Secondly, this obligation is unlawful for the fact that some of the cadastral parcels mentioned in the claim enter the protected area of the accumulative Lake Badovc and in any kind of construction situation of any kind of tourism, recreation or other facilities that could endanger the quality of water, could not be allowed and extension of administrative procedures until the exhaustion of all administrative remedies would have to lead to the same result, thus not allowing the construction of any object that could endanger the quality of water. This is because it is set out in Government Decision no. 16/127, a decision that has power over all other municipal acts and every state institution must guarantee its implementation.

Third, the realization of the construction of an individual housing complex in that area would adversely affect biodiversity, environmental, soil or water pollution, and would therefore be contrary to applicable legal acts, with particular emphasis with the Law on Environment and Government Decision No. 16/ 127. Therefore, in these circumstances, it is considered that fulfilled all elements of the attempted criminal offense of "unlawfully permitting the construction or operation of factories and installations that pollute the environment" provided for in Article 340, paragraph 1, which provides that "Anyone that in violation of the law on environmental protection, allows the construction or installation of the factories or runs or manages the factories or installation in which dangerous activity is carried out and thereby risks causing death or serious bodily injury to any person, polluting the environment, the air, land or water or causes damage in the amount of five thousand (5,000) Euros or more of animals, plants or property, is punishable by a fine or imprisonment of up to four (4) years ”, in conjunction with Article 28, par. 1 of the Criminal Code of the Republic of Kosovo, which states: "Whoever that intentionally takes action to commit a criminal offense but the offense has not been committed or the elements of the offense have not been committed shall be considered to have attempted a criminal offense".

Fourth, since the decisions issued by the Ministry have approved all appeals that the party has made to the Municipality's rejections, noted its attempt to interfere with a process for which any procedure that would have been followed, the result would be the same. And consequently his tendency to point out the contrary, as an intention to mislead the party submitting a request for the issuance of construction conditions, in an area which is prohibited for construction, presents well-founded suspicion that the elements of the offense of Fraud under Article 323, paragraph 1 of the Criminal Code of Kosovo have been met.

Fifth, in this case, the Secretary General of the MESP, using his official position and on the suspicion that it was intended to cause harm to another person or to violate the rights of the other person, in this case damaging the protected area - Badovc accumulation lake, issued decisions which obliged the Directorate of Urbanism of the Municipality of Prishtina to issue construction conditions even after two refusals. Therefore, it is suspected that these acts have consumed the elements of the criminal offense “Abuse of official position or authority” under Article 414, paragraph 1, of the Criminal Code of the Republic of Kosovo.

Sixth, in addition to the above mentioned part, these actions are also contrary to the provisions of the Law on Waters of Kosovo, respectively Article 26 paragraph 2, which prohibits the performance of all works that cause changes in water status. Also, Article 66 of this law defines the protection and conservation of protected water areas, which includes the Accumulative Lake of Badovc, announced by Government Decision No. 16/ 127. At the same time, by the same law, Article 67 stipulates that in cases where qualitative or quantitative conditions may be endangered in the protected water area, the activities of the owners or possessors of the land may be prohibited or restricted, a situation which is appropriate to the particular case.

Seventh, Article 8 of the Law on Environment stipulates that the use and protection of natural resources is done through planning for the preservation of their quality and variety, in accordance with the conditions and measures for environmental protection set forth in this law and the special laws. Consequently, this law establishes criteria and conditions that must be respected in any situation in any case where the environment is endangered, which has been attempted to be ignored by actions taken by the Secretary General of the MESP, through decisions directed to the Directorate of Urbanism of the Municipality of Prishtina

Eighth, the provisions of Administrative Instruction No. 15/2017 dated 08.12.2017 on the criteria for determining the sanitary protected areas of water resources have not been taken into account in this case. In its actions, the Ministry has contravened the provisions of Article 4 stating that designation of sanitary protected areas is done in order to protect water sources from intentional or accidental pollution which may have adverse effects on capacity and natural properties of water sources. This also having in consideration the fact that Article 18, paragraph 1, of the same Administrative Instruction provides that the 2nd sanitary zone covers the limit of 500 (five hundred) meters from the waterworks. This implies that within this area, as provided by Government Decision No. 16/ 127, as well as the legal acts in force, any construction of buildings is prohibited, much less those of recreational or residential character because they could adversely affect the biodiversity of flora and fauna, water quality, etc. This prohibition is expressly also contained in Article 13, paragraph 1.10 in conjunction with Article 15 of this Administrative Instruction, because there is a risk that undertaking such actions may have consequences on the water source, either in quantitative or qualitative terms.

Therefore, the Group for Legal and Political Studies (GLPS); Balkan Green Foundation (BGF); Institute for Development Policy (INDEP); GAP Institute requests the Basic Prosecution in Prishtina to investigate this case thoroughly and to proceed further.