Notice of the judgment and decisions of the European Court of Human Rights published in February 2024 against the Republic of Serbia

European Court for human rights (hereinafter: Court) is in the period from 1 to 29published one judgment and two decisions in February 2024 against the Republic of Serbia. 

Judgment in the caseCuric and the decision in the caseČedomir Beljić and Miroljub Milinković and others.was passed by the seven-member Chamber, while the decision in the caseMarjanović adopted by the three-member Board.

By judgment in the caseĐurić a violation of the rights referred to in Article 6, paragraph 1 of the Convention was establishedfor the protection of human rights and fundamental freedoms (hereinafter: the Convention), while decisions in casesČedomir Beljić and Miroljub Milinković and others.andMarjanović and 6 others. The court declared the application inadmissible.

And - JUDGMENT

1. Đurić against Serbia (number 24989/17, datedFebruary 6, 2024)

The case refers to the applicant's complaint that he could not exercise his right to disability benefits and that no public hearing was held before the Administrative Court.

In particular, his request to be recognized as a civil war invalid and entitled to related benefits was rejected due to the lack of written evidence from the period when the event in question took place. The oral public hearing before the Administrative Court was not held.

• Circumstances of the case and complaints of the applicant

The applicant (hereinafter: the applicant), Mr. Milan Đurić, complained that he could not exercise his right to disability benefits before the local authorities. Namely, the applicant claimed that at the age of 13 (on April 14, 1996) he suffered serious bodily injuries due to the activation of an explosive device that was left behind after the previous armed conflict. As a result of the above, the applicant lost his left eye and three fingers of his left hand and suffered severe damage to his right eye, after which he was treated for several years for his injuries in the country and abroad and continued his education in a specialized high school for visually impaired children.

The applicant subsequently demanded that he be recognized as a civil war invalid and entitled to the related benefits, which the national administrative authorities, i.e. the courts, refused, citing the lack of written evidence from the period when the event in question occurred, bearing in mind that the police the investigation report, as well as the two remaining detonation capsules destroyed during the NATO intervention in 1999. The applicant also complained about the failure to hold an oral hearing in the proceedings before the Administrative Court.

The petition was submitted to the Court on March 23, 2017.

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

• Decision of the Court

The court first examined the admissibility of the presented complaints, and established that the complaints in terms of Article 6, paragraph 1 of the Convention are admissible.

In the context of considering the merits, the Court noted that even the Supreme Court in its decision noted the lack of flexibility of the legal provision of Article 12 of the then valid Law on the Rights of Civilian Disabled Persons of War, which stipulated that the fact that a person actually suffered injuries under the conditions prescribed in Article 2 .is determined exclusively by presenting written evidence from the time when the injury was suffered.

The court also noted that the fact that the request for the recognition of the status of civil war invalid was not submitted immediately after the accident, but about 10 years later, cannot be attributed to either the applicant or his representative, bearing in mind that the applicant had an acute health problem as a result of the accident which took priority over legal satisfaction.

The court concluded that the applicant was faced with both the legal and factual impossibility of properly examining his request, especially bearing in mind that the police statement of March 21, 2006 was also not considered procedurally admissible, as it dates from 2006. and not from the time when the applicant suffered injuries. The court also assessed that, due to the specificity of the circumstances related to the context of the request related to social security, it would be useful if the domestic court heard the retired police officer mentioned in the police statement from 2006, in order to possibly provide relevant details.

Following the above, the Court assessed that the applicant did not have an effective right to a fair trial, because he was not given a reasonable opportunity to present his case at the oral hearing, under conditions that would not put him in an essentially disadvantageous position.

The applicant also complained about the violation of Article 14 of the Convention, as well as Article 1 of Protocol No. 1 to the Convention, but the Court considered that it had examined the main legal issues raised in the petition in question, and that there was no need to issue a separate decision on the admissibility and merits of the complaints. submitted on the basis of the mentioned articles.

• Just satisfaction (Article 41 of the Convention)

The court obliged the Republic of Serbia to pay the applicant the amount of 3,000.00 euros in compensation for non-material damages and the amount of 3,000.00 euros in the name of costs and expenses, in dinar equivalent on the day of payment, within three months from the finality of the verdict. 

The court concluded that the applicant did not prove the existence of a causal link between the established procedural violation and the alleged material damage, and therefore that  rejected the request in its entirety.

II      DECISIONS

1. Čedomir Beljić and Miroljub Milinković and others. against Serbia (No.3000/16 and 7189/16,from theJanuary 23, 2024, published February 15, 2024)

The case refers to the issue of violation of the right to a fair trial, respect for private and family life and property due to the exhumation of the remains of the applicants' relatives, the relocation of graves to another cemetery and the lack of procedural safeguards in domestic proceedings.

• Circumstances of the case

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 adopted 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 were opposed to the relocation of the burial places where their relatives rest, and they filed appeals against the decisions allowing the exhumation and relocation of the remains, and one of them filed a criminal complaint for illegal exhumation. 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 rejected their constitutional appeals, depending on the circumstances of the individual case.

• Complaints of the applicants and proceedings before the Court

The applicants complained of: (a) 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 explanations for its 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 disputed 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 domestic courts, the Court did not consider it necessary to examine the Government's complaint that Article 6 is inapplicable, because it judged 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.

2. Marjanović and 6 others. against Serbia (No. 56079/22, adopted on February 1, 2024, published on February 22, 2024)

The applicants complained in the petitions to the violation of the right to a fair trial from Article 6, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention), as well as to the violation of the right to property from Article 1 of Protocol No. 1 to the Convention, due to non-execution of domestic decisions adopted against social/state enterprises.

Due to the similarity of the subjects of the petitions, the Court combined the petitions.

The government made claims that domestic legally binding decisions, the non-execution of which the applicants complained about in their petitions, were executed in their favor before the Court submitted the cases to it.

The applicants did not dispute that fact.

After examining the circumstances of the case, the Court concluded that the state fully paid the amounts awarded at the domestic level.

Bearing in mind that the applicants are not the Court delivered information that legally binding domestic decisions were made before the Government received notification of the submission of petitions, which represents the very essence of the petitions, the Court found that such behavior of the petitioners contradicts the purpose of the right to an individual petition.

The court also indicated that lawyers must understand that, taking into account the Court's duty to investigate allegations of human rights violations, they must also show high professional caution and meaningful cooperation in working with the Court, saving it from unfounded complaints. Therefore, lawyers must, before and after commencing proceedings, thoroughly inquire into all the details of the case, carefully complying with all relevant procedural rules, and are also required to encourage their clients to do the same. Otherwise, intentional or negligent misuse of the Court's resources, it can threaten the credibility of the lawyer's work in the eyes of the Court, and even if it happens systematically, it can lead to a situation where certain lawyers are prohibited from representing the applicants.

Consequently, the Court decided to declare the petitions inadmissible due to abuse of the right to an individual petition, in accordance with the provisions of Article 35, para. 3(a) and 4 of the Convention.