Beljić v. Serbia and Milinković et al. against Serbia

European Court of Human Rights(hereinafter: Court) is January 23 brought,and on February 15, 2024, announced the decision in the caseČedomir Beljić and Miroljub Milinković and others. against Serbia, no. 3000/16 and 7189/16, by which he declared the petitions inadmissible.

The decision was made unanimously by a panel of 7 judges.

THE CIRCUMSTANCES CASES

The applicants (hereinafter: the applicants) are residents of the settlement Vreoci,municipality of Lazarevac, in which the local cemetery was moved to another location for the purpose of coal exploitation due to the needs of the public interest to ensure the stability of the electricity supplyenergy.

Namely, by the decision of the Government of Serbia from 1997, it was established that there is a public interest in the expropriation of certain plots in Vreoci, including the plots in the local cemetery, for the purpose of coal exploitation. The user of the exploitation wasstate-owned company "Elektroprivreda Srbije" (hereinafter: "EPS") - Kolubara Mining Basin (hereinafter: "RBK"). The Government repeated this decision in 2009, and after the annulment of the decision by the Administrative Court, a new Government decision was made in 2011. During 2007, the Government decree was passed (which related to the achievement of the goals of the Energy Development Strategy of the Republic of Serbia in the period from 2007 to 2012) and the Program basis for the relocation of the Vreoci settlement, which was adopted by EPS. The Constitutional Court rejected the initiative forinitiation of proceedings assessment of constitutionality and legality with regard to the Program basis for the resettlement of the Vreoci settlement. In 2009, the authorities of the city municipality of Lazarevac made a decision to put the local cemetery out of use, in which it was pointed out that the relocation of graves will be carried out in an organized manner to the newly built cemetery in Lazarevac. The Constitutional Court also took this initiativeto initiate the procedure evaluated the constitutionality and legality of the decision. During this period, the plots were transferred to the beneficiaries of the expropriation.

All the applicants opposed the relocation of the burial places where their relatives rest and filed appeals against the decisions allowing the exhumation and relocation of the remains, and one of them filed a criminal complaint for illegal excavation. All legal remedies submitted were rejected.

The applicants, dissatisfied with the second-instance decisions, initiated administrative disputes before the Administrative Court. During 2012, the Administrative Court held an oral hearing and after it confirmed the second-instance decisions. In the explanation, it was stated that the relocation of the graves was carried out in order to satisfy the public interest, which is reflected in ensuring the stability of the electricity supply. The applicants then turned to the Constitutional Court, complaining about the violation of the right to a fair trial and the violation of the right from Article 8 of the Convention and Article 1 of Protocol no. 1. The fourth applicant also complained about the uneven practice of the Administrative Court, since, in the same set of circumstances, that court allegedly made a different decision regarding his request and his brother's request. The Constitutional Court rejected or dismissed their constitutional appeals, depending on the circumstances of the individual case.

COMPLAINTS APPLICANTS AND THE PROCEDURE BEFORE THE COURT

The applicants complained: (a) of the excavation and relocation of the local cemetery, particularly the graves of their deceased relatives, without the applicants' consent and allegedly without adequate procedural safeguards in relation to the proceedings, and (b) the alleged violation of their property rights caused by the relocation. They referred to Art. 6 and 8 of the Convention and Article 1 of Protocol No. 1. with the Convention. In addition, the fourth applicant complained, according to Article 6 of the Convention, about the uneven practice of domesticcourts.

The petitions were submitted to the Court on January 4 and 22, 2016.

The subject is the Republic of Serbiacommunicated as a case of influence(impact case).

DECISION OF THE COURT

• Article 8 of the Convention

Analyzing the complaints related to the violation of the right to respect for private and family life, the Court assessed:

a) that the facts of this case fall within the scope of Article 8 of the Convention;

b) that digging up the remains and moving the graves of the applicants' relatives constitutes an interference with their rights according to the mentioned article of the Convention;

c) that the interference was justified, because:

• was in accordance with the law, i.e. it is based in domestic law (especially in the Law on Burials and Cemeteries and in the Decision on decommissioning the local cemetery in Vreoci). The court particularly emphasized that all decisions were subject to subsequent control by the Administrative Court, which had full jurisdiction and held a public hearing in all the applicants' cases, and considered all the relevant submissions of the applicants and gave reasons for their decisions, which were neither arbitrary nor unreasonable ;
• had a legitimate goal - the production of electricity and a response to the increase in electricity consumption, and as such served the economic interests of the country as a whole;
• was necessary in a democratic society - it corresponded to a "necessary social need" (exploitation of coal reserves to provide the necessary electricity for households), the reasons given by the domestic authorities to justify the same were "relevant" and "sufficient" (stability of electricity supply , etc.) and was proportionate to the legitimate goal pursued (there were a number of accompanying measures aimed at mitigating the impact of the contested measures - a newly built cemetery at a reasonable distance, the possibility of choosing any other cemetery of one's choice, all excavation costs and resettlement was borne by the user of the expropriation, etc.).

Accordingly, the Court rejected the applicants' complaints regarding the violation of the right to respect for private and family life as clearly unfounded.

• Article 6 of the Convention

In connection with the fourth applicant's complaint about the unequal judicial practice of the domestic courts, the Court did not consider it necessary to examine the Government's objection that Article 6 is inapplicable, because it assessed that the complaint was certainly inadmissible since in the specific case only one decision of the Administrative Court differed from the decision in the case of this petitioner. Therefore, the Court considered that the decision did not represent "deep and long-lasting differences" that would contradict the principle of legal certainty and rejected the applicant's complaint as clearly unfounded.

• Article 1 of Protocol No. 1 to the Convention

Regarding the allegations of the applicants that their right to property was violated, the Court accepted the objection of the Government that their complaints wereratione materiae incompatible with the provisions of the Convention, judging that the facts of the case do not fall within the scope of Article 1 of Protocol No. 1 to the Convention. Namely, the contested grave sites did not represent the property of the applicants, nor could they be the subject of legal transactions. The applicants did not have any property rights in respect of the individual grave sites, had never exercised any property rights in relation to them, nor could they have had a legitimate expectation of realizing property rights or any other claim that was sufficiently established and enforceable. Therefore, the Court rejected these complaints of the applicants.