ECHR judgment of 01 October 2019 in the case of Orlovic and Others v. Bosnia and Herzegovina (application No. 16332/18).
In 2018, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Bosnia and Herzegovina.
In the case, the application was successfully considered on the issue of non-fulfillment of the final decision on the return of land to internally displaced persons in full, including the land on which the church was built. The case has violated the requirements of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicants were forced to leave their homes during the war in Bosnia in 1992-1995 and became internally displaced persons. In 1997, part of the land plots owned by the applicants was expropriated and transferred to the parish for the construction of the church. In 1999, the Commission for the Consideration of Requirements for Real Estate of Internally Displaced Persons and Refugees (hereinafter referred to as the Commission) canceled any involuntary transfers of property or restrictions on rights to it that occurred after 1992, and established that the applicants had the right to regain land. In 2001, the Ministry of Refugees ordered the return of land immediately. The land was returned to the applicants, with the exception of the land on which the church was located. The applicants' attempts to regain their land in full were unsuccessful.
QUESTIONS OF LAW
Regarding compliance with Article 1 of Protocol No. 1 to the Convention. It was not disputed by the parties that the applicants were the owners of the disputed property and that they had the right to return the land to them. The applicants' right to restitution was fully established by decisions of the Commission and the Ministry of Refugees.
Both decisions gave them the right to return the land immediately, both were final and enforceable. Under the Property Restitution Act of 1998 and the Dayton Peace Agreement of 1995, the authorities were required to implement the decisions of the Commission.
Subsequently, the land plots were returned to the applicants, with the exception of the parcel on which the church was located. The applicants unsuccessfully tried to obtain the full return of the land to them. The obligation of the state to ensure the applicants effective exercise of the property right provided for in Article 1 of Protocol No. 1 to the Convention required the domestic authorities to take practical measures to ensure the implementation of decisions of the Commission and the Ministry of Refugees. Instead, the authorities initially even acted in the opposite way, allowing the church to remain on the applicants' land. The applicants' civil claim for their return of the land plot was subsequently dismissed.
Despite the fact that they had two final decisions on the return of the land in full, the applicants still could not after the ratification of the Convention and its Protocols by the authorities of Bosnia and Herzegovina peacefully use their property.
Although the delay in the execution of the decision could be justified in specific circumstances, the authorities of Bosnia and Herzegovina did not provide any justification for their inaction in the applicants' case. A very long delay represented a clear refusal by the authorities to enforce the relevant decisions, leaving the applicants in a state of uncertainty regarding the exercise of their property rights. Thus, as a result of the failure of the authorities to comply with the final and enforceable decisions, the applicants were seriously affected in their property rights. In this regard, a disproportionate and excessive burden was placed on them.
In the case there was a violation of the requirements of Article 1 of Protocol No. 1 to the Convention (adopted unanimously).
In applying Article 46 of the Convention, the Court considers that the violation found in the applicants' case did not leave a real choice as to the measures necessary to eliminate it. Under such conditions, taking into account the special circumstances of the case, the Court decided that the authorities of Bosnia and Herzegovina should take all necessary measures to ensure the full implementation of the decisions of the Commission and the Ministry of Refugees, including the demolition of the church from the applicants' land, without further delay and no later than three months after the entry into force of the judgment of the European Court.
In application of Article 41 of the Convention. The Court awarded EUR 5,000 to the first applicant and EUR 2,000 to each of the remaining applicants in respect of non-pecuniary damage.