Last Updated on October 3, 2020 by LawEuro
Information Note on the Court’s case-law 233
October 2019
Orlović and Others v. Bosnia and Herzegovina – 16332/18
Judgment 1.10.2019 [Section IV]
Article 1 of Protocol No. 1
Positive obligations
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Non-enforcement of final decision ordering full repossession of land by internally displaced persons, including plot on which church had been built: violation
Article 46
Article 46-2
Execution of judgment
Individual measures
Respondent State required to secure full repossession of land by internally displaced persons, including removal of a church
Facts – The applicants were forced to flee their home during the 1992-95 Bosnian war and became internally displaced persons. In 1997 a part of the applicants’ land was expropriated and allocated to the parish for the purpose of building a church. In 1999 the Commission for Real Property Claims of Displaced Persons and Refugees (“the CRPC”) annulled any involuntary transfer or restriction of ownership after 1992 and established that the applicants were entitled to repossess the land. In 2001 the Ministry for Refugees ordered immediate repossession of the land. The applicants regained possession of their land with the exception of the plot on which the church remained. The applicants’ efforts to regain full possession were unsuccessful.
Law – Article 1 of Protocol No. 1: It was not disputed that the applicants were the owners of the property in question and that they were entitled to have the land restored to them. The applicants’ right to full restitution had been established by decisions of both the CRPC and the Ministry for Refugees. Both decisions had conferred the right to immediate repossession and both were final and enforceable. Under the Restitution of Property Act 1998 and the Dayton Peace Agreement of 1995, the relevant authorities had to implement the CRPC’s decisions.
The land had subsequently been returned to the applicants, except for the plot on which the church remained. The applicants had repeatedly sought full repossession to no avail. The State’s obligation to secure to the applicants the effective enjoyment of their right of property, as guaranteed by Article 1 of Protocol No. 1, had required the national authorities to take practical steps to ensure that the decisions of the CRPC and the Ministry for Refugees were enforced. Instead, the authorities initially even did the opposite by effectively authorising the church to remain on the applicants’ land. The applicants’ civil claim seeking to recover possession of their land had ultimately been dismissed.
Despite having two final decisions ordering full repossession of their land, the applicants were still prevented, seventeen years after the ratification of the Convention and its Protocols by the respondent State, from the peaceful enjoyment thereof.
Although a delay in the execution of a judgment might be justified in particular circumstances, the Government had not offered any justification for the authorities’ inaction in the applicants’ case. The very long delay had amounted to a clear refusal of the authorities to enforce the relevant decisions, leaving the applicants in a state of uncertainty with regard to the realisation of their property rights. Thus, as a result of the authorities’ failure to comply with the final and binding decisions, the applicants had suffered serious frustration of their property rights. As such, they had had to bear a disproportionate and excessive burden.
Conclusion: violation (unanimously).
Article 46: The violation found in the applicants’ case did not leave any real choice as to the measures required to remedy it. In those conditions, having regard to the particular circumstances of the case, the Court considered that the respondent State had to take all necessary measures in order to secure full enforcement of the decisions of the CRPC and the decision of the Ministry for Refugees, including, in particular, the removal of the church from the applicants’ land, without further delay and at the latest within three months from the date on which the judgment became final.
Article 41: EUR 5,000 to the first applicant and EUR 2,000 to each of the remaining applicants in respect of pecuniary damage; no claim made in respect of non-pecuniary damage.
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