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SEPARATE DISSENTING OPINION OF JUDGE SEADA PALAVRIĆ JOINED BYPRESIDENT MIRSAD ĆEMAN, VICE-PRESIDENT MARGARITA TSATSA-NIKOLOVSKA AND JUDGE TUDOR PANTIRU

 

In the Decision no. AP 4492/14 of 28 September 2017, the Constitutional Court dismissedan appeal lodged by Fata Orlović, Šaban Orlović, Fatima Ahmetović, Hasan Orlović, Zlatka Bešić,Senija Orlović, Ejub Orlović, Abdurahman Orlović, Muška Mehmedović, Mirsada Ehlić, MelkaMehmedović, Rahima Dahalić, Fatima Orlović and Murtija Hodžić against the judgment of theSupreme Court of the Republika Srpska no. 82 0 P 008784 14 Rev of 6 August 2014, the judgmentof the County Court in Bijeljina no. 82 0 P 008784 13 of 23 October 2013 and the judgment of theBasic Court in Srebrenica no. 82 0 P 008784 12 P of 3 June 2013.

The reasoning of the Constitutional Court may be boiled down to the conclusion that giventhe circumstances of the case at hand, the appellants’ right to a fair trial referred to in Article II(3)(e)of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention was notviolated when it comes to application of both the procedural and substantive law, in the case wherethe ordinary courts, by application of the burden of proof rule regulated under the Civil ProcedureCode’s provisions, which are clear, unambiguous and accessible, dismissed the claim of theappellants by presenting clear arguments and reasons. As to the circumstances of the case at hand,there is nothing else which would lead to a conclusion that, while rendering the challengedjudgments, the courts applied the law in an arbitrary manner. In addition, the Constitutional Courtconcludes that there is no violation of the right to property under Article II(3)(k) of the Constitutionof Bosnia and Herzegovina and Article 1 of Protocol No. 1 to the European Convention, in the casewhere the appellants bring the violation of that right with erroneously established facts andmisapplication of the substantive and procedural law, and where the Constitutional Court hadalready concluded that there was no arbitrariness in that regard.

With all due respect of the majority decision, I cannot agree with the reasoning theConstitutional Court provided for its decision.

First of all, I note that the Constitutional Court acted quite formalistically and limited itsconsideration of the relevant appeal solely to the civil proceedings finalised by the challengedjudgement of the Supreme Court of Republika Srpska. However, with due respect of the majoritydecision, I believe the Constitutional Court should have perceived the issue of the violation ofconstitutional rights of the appellants, primarily of the first appellant Fata Orlović, as a whole.Namely, thecase of Fata Orlović is unique in Bosnia and Herzegovina. Upon the return to theirhome after many years of exile, only the appellant and her descendants and relatives, as membersof the minority (Bosniacs) on the territory of the Republika Srpska but the pre-war majority inKonjević Polje (before the war the national composition in Bratunac whose territory includesKonjević Polje was as follows: Muslims (Bosniacs) 56,02%, Serbs 39,46%, Croats 0,41%,Yugoslavs 2,06%, Others and unspecified 2,02%, while the majority today are Serbs), found anOrthodox Church built in the courtyard of their home. That is how “the case of Fata Orlović”became generally known both to citizens and courts of the entire Bosnia and Herzegovina.

In this regard, I recall that the provisions of Article II(5) of the Constitution of Bosnia andHerzegovina guarantee that all refugees and displaced persons have the right to freely return to theirhomes of origin, and that they have the right, in accordance with Annex 7 to the GeneralFramework Agreement, to have restored to them property of which they were deprived in the courseof hostilities since 1991 and to be compensated for any such property that cannot be restored tothem. Any commitments or statements relating to such property made under duress are null andvoid. In addition, the provision of Article II(4) of the Constitution of Bosnia and Herzegovinaguarantees all citizens non-discrimination on any ground.

Hence, the return of refugees and displaced persons and repossession of their pre-warproperty are safeguarded by Article II(5) of the Constitution of Bosnia and Herzegovina inaccordance with Annex 7 to the General Framework Agreement on Peace in Bosnia andHerzegovina. It is indisputable that Annex 7 (Agreement on Refugees and Displaced Persons)entered into by the Republic of Bosnia and Herzegovina, Federation of Bosnia and Herzegovina andthe Republika Srpska, as Parties thereto, by which all three Parties agreed in Article 1, first of all,that all refugees and displaced persons have the right freely to return to their homes of origin, andthat they have the right to have restored to them property of which they were deprived in the courseof hostilities since 1991 and to be compensated for any such property that cannot be restored tothem. It is underlined that the early return of refugees and displaced persons is an importantobjective of the settlement of the conflict in Bosnia and Herzegovina.

The parties committed to undertake all necessary steps to prevent activities within theirterritories which would hinder or impede the safe and voluntary return of refugees and displacedpersons. To demonstrate their commitment to securing full respect for the human rights andfundamental freedoms of all persons within their jurisdiction and creating, without delay, conditionssuitable for return of refugees and displaced persons, the Parties obligated themselves toimmediately undertake the measure of the prevention and prompt suppression of any written orverbal incitement, through media or otherwise, of ethnic or religious hostility or hatred; and thatchoice of destination shall be up to the individual or family, and the principle of the unity of thefamily shall be preserved. The Parties shall not interfere with the returnees’ choice of destination,nor shall they compel them to remain in or move to situations of serious danger or insecurity, or toareas lacking in the basic infrastructure necessary to resume a normal life. By the provision ofArticle 7 of Annex 7 the Parties established an independent Commission for Displaced Persons andRefugees and by Article 12, inter alia, they agreed that any person requesting the return of propertywho is found by the Commission to be the lawful owner of that property shall be awarded its return.Any person requesting compensation in lieu of return who is found by the Commission to be thelawful owner of that property shall be awarded just compensation as determined by theCommission. The parties also agreed that in determining the lawful owner of any property, theCommission shall not recognize as valid any illegal property transaction, including any transfer thatwas made under duress, in exchange for exit permission or documents, or that was otherwise inconnection with ethnic cleansing.

I recall that, to comply with the obligations assumed under Annex 7, inter alia, in 1998, theRepublika Srpska passed the Law on Cessation of Application of the Law on use of Abandoned Property (with subsequent amendments and supplements – “the Law on Cessation of Application”)by the force of which the Law on Use of Abandoned Property of 1996 was rendered ineffective.Article 1 of the Law on Cessation of Application stipulates that it is applied to the real propertywhich was vacated as of 30 April 1991, whether or not the real property or apartment was declaredabandoned provided that the owner, possessor or user lost possession of the real property or theoccupancy right holder lost possession of the apartment before 19 December 1998. Article 5 of thesame Law prescribes that the owner, possessor or user of the real property who abandoned theproperty shall have the right to repossess the real property with all the rights which s/he had before30 April 1991 or before the real property became abandoned. Article 9 of the Law stipulates thatthe owner, possessor or user of abandoned real property, as referred to in Article 6, or his/herauthorised representative, shall have the right to file a claim at any time for the repossession ordisposal in another way of his/her abandoned property to the Ministry of Refugees and DisplacedPersons in the municipality on the territory of which the real property is located (Article 10 of theLaw), and that the right of the owner to file a claim shall not be subject to the statute of limitation.Provisions of Article 13 of the Law stipulates that the decision on return of the real property to theowner, possessor or user shall contain information on the owner, possessor or user to whom thereal property is returned; information on the real property subject to return; the time limit withinwhich the real property will be returned; a decision terminating the right of the temporary user;the time limit for the current user to vacate the property, or for handing over of the land... Article14 of the Law, inter alia, stipulates that the owner, possessor or user may immediately reoccupy realproperty that is vacant, and in case of the return of arable land into possession, the time limit for itshanding over may be extended, as an exception, until the harvest is collected.

For all of the above, in my opinion, it follows that a refugee or displaces person – torepossess the real property with all the rights which s/he had before 30 April 1991 or before thereal property became abandoned – has to file a claim to the competent Ministry in accordance withAnnex 7 or the Law on Cessation of Application. To repossess the real property with all the rightswhich s/he had before 30 April 1991 or before the real property became abandoned a refugee ordisplaced person does not have to take part in any judicial proceedings. The Parties to the Annex 7,as a public authority, have themselves taken on the positive obligation, and amongst others theRepublika Srpska by the Law on Cessation of Application, to act upon any request by a refugee ordisplaced person for repossession of real property and as soon as it establishes that the personconcerned is the owner or possessor, it shall secure for him/her the repossession of the real propertywith all the rights which s/he had before 30 April 1991 or before the real property becameabandoned. In the appellants’ case that purports that the real property where the Orthodox Churchwas built during the war has to be restored to them in the same state it was at the time the appellantsleft it because of hostilities in Bosnia and Herzegovina in the period from 1992 to 1995, thus, withno encumbrance or usurpation by anyone.

However, this has not occurred. When the appellants were reinstated into possession of theirproperty, the Orthodox Church was located on the real property in front of their home even thoughthe public authorities were obligated to remove the church given that the appellants, in accordancewith the Annex 7 and the Law on Cessation of Application, filed a claim for reinstatement intopossession of their real property, and not the request for compensation in lieu of return (although the appellants, as far as the public knowledge grasps, the compensation has never been offered and theywould not accept it either). Thus, they requested a natural restitution. Although there was no need toexplain why they want to return to their home, including all associated land, it is not difficult tounderstand that they wanted to get back to their roots as any human being would. They lived therewith the members of their family who are no longer alive, who, even worse, were killed during thewar, as the appellants claim, and that is the only place where they can revive their memories and“see” them again.

After all, that feeling was described in the best possible manner by the poet Aleksa Šantić (Serb)who, during the expulsion/immigration of Bosniacs during his lifetime, wrote a poem “Ostajteovdje” (Remain Here) in which he invites: “Remain here! The sun of foreign skies Will not warmyou as warmly as our own; The mouthfuls of bread are bitter over there Where none is your own,where there are no brothers. Who will find a mother better than one's own? Your mother is this veryland; Look across the limestone crags and fields. Everywhere are the graves of your ancestors.Here everyone knows you and loves you and there, No one will know you, our own limestones arebetter even bare, Than the flower fields where stranger walks.

“Those feelings are at the core of every human being. Therefore, those feelings haveobviously been the reason to emphasise at the very beginning of Annex 7 that any return of refugeesand displaced persons is an important objective for the solution of conflict in Bosnia andHerzegovina. However, is it possible to objectively expect the solution of conflicts in Bosnia andHerzegovina in the situation where, even 22 years after the end of hostilities, i.e. signing of theGeneral Framework Agreement on Peace in Bosnia and Herzegovina, the Orthodox Church has notbeen removed from the appellants’ property? What does this tell us of the public authorities,whichever they might be? Is this to be understood in such a manner that, after the appellants wereexpelled, a general conviction was that they will never come back, and for that reason the SerbOrthodox Church was built on their land (although, as far as I know, not a single religion supportsceasing someone else’s property, particularly for the construction of a religious facility on the landbelonging to the members of different religious affiliation)? Was it possible for the church, even theOrthodox one, to be constructed on the appellants’ land without a knowledge or support of thepublic authorities? Given that the public authorities consistently have not been ordering or carryingout the removal of the very same Orthodox Church from the appellants’ land for 22 years – the onlypossible conclusion in this situation is that the public authority is the one that gives support that thechurch remains on the appellants’ property. If this conclusion is well-founded, and it appears so,how should one understand the obligation the Republika Srpska assumed under Annex 7 and alsounder Article II(5) of the Constitution of Bosnia and Herzegovina? According to Annex 7, todemonstrate their commitment to securing full compliance with the human rights and fundamentalfreedoms of all persons within their jurisdiction and creating, without delay, conditions suitable forreturn of refugees and displaced persons, the Parties shall immediately take the followingconfidence building measures: the repeal of domestic legislation and administrative practices withdiscriminatory intent or effect; the prevention and prompt suppression of any written or verbalincitement, through media or otherwise, of ethnic or religious hostility or hatred...

It is true, as stated above, that the Republika Srpska passed the Law on Cessation ofApplication by which it only formally complied with a part of its obligation relating to theannulment of domestic legislation with discriminatory intent or effect. However, to have thisobligation truly complied with, it is necessary to implement the Law on Cessation of Application,i.e. it is necessary to reinstate the appellants’ into possession of their real property with all the rightsthey had over it before they fled as refugees, i.e. it is necessary to remove the Orthodox Church.

Getting back to the procedure that resulted in the challenged judgements which are subject-matter of the appeal in the Constitutional Court’s Decision no. AP 4492/14, as I already have said, arefugee or displaced person – to repossess his/her real property with all the rights which s/he hadbefore 30 April 1991, or before the real property became abandoned – had to file a claim with thecompetent Ministry in accordance with Annex 7 or the Law on Cessation of Application, as theappellants did. However, as the fact stands that it has not been acted upon their request in itsentirety, as their courtyard was “restored” to them but with the Orthodox Church in front of theirhome, the appellants had lodged 15 years ago, to be precise on 29 October 2002, a lawsuit againstthe defendant the Serb Orthodox Church, the Church Municipality of Drinjača, for the purpose of“repossession of the plot marked as cadastral plot 996 called Crkvine, recorded in the Register ofDeeds no. 235 of the cadastral plot Konjevići”.

Frankly speaking, it did not come as a surprise that the Basic Court originally declared itslack of subject-matter jurisdiction to proceed in this legal matter and rejected the suit, given that therestoration of property to the refugees and displaced persons falls within the responsibility of theMinistry which is a part of the Government, i.e. public authorities of the Republika Srpska.

During 2010, the Basic Court dismissed the claim of the appellants and that decision wasupheld by the County Court and on 1 February 2012 the Supreme Court granted the petition forreview and remitted the case to the second instance court, which subsequently granted and quashedthe first instance judgment of 21 May 2010 and remitted the case for renewal of the proceedings tobe conducted by the court of first instance. While conducting the renewed proceeding, on 3 June 2013, the Basic Court dismissed the appellants’ claim again and ordered them to compensate thefirst defendant for the costs of the civil proceeding to the amount of BAM 11 243.70 i.e. the SerbOrthodox Church of Zvornik-Tuzla Diocese in Bijeljina which, by illegal construction of the churchpossessed the land of the appellants - the courtyard in front of the house of the appellant and refusedto return it to them. While deciding the complaint of the appellants, the County Court granted onlythe part of the complaint relating to the costs of the proceeding and ordered the appellant tocompensate the first defendant as follows: instead of the amount of BAM 11 243.70 the amount ofBAM 1 029.60 is to be paid, while the rest of the first instance judgment relating to dismissal of theclaim was upheld. On 6 August 2014 the petition for review filed by the appellants on 6 August2014 was dismissed by the Supreme Court, in which case there are no indications that thedefendants, from the very beginning of the proceedings, during which the claim has been amendedfor several times, until the end of the proceedings, managed to refute the appellant’s ownership rightover the land on which the Orthodox church was illegally built. So, the appellants had to wait for 12years for the final decision of ordinary courts to be rendered, where 8 years passed until therendering of the first instance judgment and all of this was happening without any favourable resultfor the appellants. The only result of the fight for the repossession of the appellants’ property is,regretfully, the fact, which that is well-known to the public of Bosnia and Herzegovina, that theappellant got seriously ill.

It could be undisputedly concluded that the excessive burden was placed on the appellants inorder to find persons with legal standing to be sued and specify the claim which will ensure that theOrthodox church is removed from their land, and all of that was without any reason as the publicauthorities were under positive obligation to resolve the issue of relocation of the Orthodox Churchfrom their land upon their claim to the Ministry for Human Rights of RS for repossession of theirproperty, in accordance with obligations the Republika Srpska took over under Annex 7. That thisissue involves a positive obligation of public authority – the Republika Srpska it follows form thedefinition of positive obligation adopted by the European Court of Human Rights, according towhich understanding the basic characteristic of positive obligations is that they in practice requirenational authorities to take the necessary measures to safeguard a right or, more precisely, to takethe necessary measures to safeguard a right or, more specifically, to adopt reasonable and suitablemeasures to protect the rights of the individual. Such measures may be judicial. This is where thestate is expected to lay down sanctions for individuals infringing the Convention to issueregulations for a specific activity or for a category of persons. However, they may also consist ofpractical measures. Hindrance in fact can contravene the Convention just like a legal impedimentregardless is it negative or positive obligation of the public authority. So, it is definitely insufficientthat the Republika Srpska, within the scope of its positive obligations from Annex 7, according towhich the Constitution of Bosnia and Herzegovina, in its Article II(5) guarantees the right torefugees and displaced persons to return to their pre-war homes and to repossess their property, hasadopted the Law on Cessation of Application. Further specific measures are still required so that theappellants, as a category of refugees and displaced persons, are ensured the right to repossess theirproperty in full, including the rights they used to have on the day when they abandoned thembecause of the war circumstances. In the case at hand it means that it is necessary that the RepublikaSrpska, as a public authority, while fulfilling its positive obligation, resolve the issue at once whenit comes to illegally built Orthodox Church on the land of the appellants and that land to be handedover to them, including all rights they used to have in that regard on 30 April 1991, i.e. on the daywhen they had to leave it as refugees and displaced persons.

Bearing in mind the aforesaid, I am of the opinion that the Constitutional Court should havegranted the appellants’ appeal and order the Republika Srpska to finally fulfil its positive obligation,while giving sufficient time to the Republika Srpska to do so.

In support of my position, I would like to remind that the Constitutional Court dealt withsimilar issues. So, in its Decision no. AP-2275/05 of 26 January 2007, as regards the relevant part,the Constitutional Court granted the appeal and established that there was a violation of the right toreturn to home under Article II(5) of the Constitution of Bosnia and Herzegovina because theadministrative bodies and Supreme Court failed to give any weight to the evidence that theappellant had lived at the address of the disputed apartment until 1992 and that he abandoned theapartment in question due to the war in Bosnia and Herzegovina. In consequence, there has beeninsufficient judicial or administrative protection for the right asserted by the appellant to return towhat he claims was his home of origin.

Moreover, in its Decision no. AP-2763/09 of 22 March 2013, the Constitutional Courtgranted the appeal and established that there was a violation of Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of Protocol No.1 to the European Convention, pointing out asfollows: Taking into account the appellants’ assertions relating to the circumstances surroundingthe destruction of their house and the supporting evidence presented by the appellants (it should benoted that the incident occurred during the war and that the appellants were members of an ethnicminority in that region), the Constitutional Court holds that the investigation into the incident wasnecessary for the protection of the appellants’ property. Given that no investigation was carried out(the incident was not even registered in the official records of the Police Station situated in theimmediate vicinity of the place where the incident had occurred), the Constitutional Court considersthat the Republika Srpska failed to fulfil its positive obligation and, as a result, the appellants’ right toproperty under Article II(3)(k) of the Constitution of Bosnia and Herzegovina and Article 1 of ProtocolNo. 1 to the European Convention was violated. As a last argument, I remind that the European Court of Human Rights, in the case of Đokić vsBosnia and Herzegovina, found that there was a violation of the applicant’s right to property underArticle 1 of Protocol No. 1 to the European Convention and ordered Bosnia and Herzegovina to paythe appellant the compensation for the apartment which was not returned to him, neither was hecompensated for it by domestic authorities, although the appellant requested compensation. TheEuropean Court of Human Rights reasoned its decision stating that the Court agrees with theapplicants that a deprivation of property effected for no reason other than to confer a private benefiton a private party cannot be "in the public interest". Nonetheless, the compulsory transfer ofproperty from one individual to another may, depending upon the circumstances, constitute alegitimate means for promoting the public interest (see: James and Others, above mentioned,paragraph 40). In this connection, the taking of property in pursuance of a policy calculated toenhance social, economic and other polices can properly be described as being "in the publicinterest" even if “a taking of property effected in pursuance of legitimate social, economic or otherpolicies may be 'in the public interest,' even if the community at large has no direct use or enjoymentof the property taken (ibid., paragraph 45). As regard the case at hand, the Court is willing to acceptthat the disputed measures were aimed at enhancing social justice, as claimed by the defendant, andtherefore it pursue a legitimate aim.

While responding to the question whether a fair balance was struck by such interferencewith the property of the applicants, the European Court of Human Rights noted: Interference with apeaceful enjoyment of possessions must strike a fair balance between the demands for protection ofpossessions and requirement of protection of the public interest (see, inter alia, Sporrong andLönnroth, stated above, § 69). Although it is true that the States enjoy a wide margin of appreciationwhen deciding these issues (See: Immobiliare Saffi vs Italy [GC], no. 22774/93, § 49, ECHR 1999-V; Radanović vs. Croatia, no. 9056/02, § 49, 21 December 2006; and J.A. Pye (Oxford) Ltd andJ.A. Pye (Oxford) Land Ltd vs. Great Britain [GC], no. 44302/02, § 75, ECHR 2007-X), the Courtis of the opinion that in the case at hand no fair balance was struck for the following reasons. Iwill point to the first reason from amongst the reasons stated by the European Court of HumanRights and according to that reason that court is aware of the fact that Sarajevo, where most ofmilitary apartments is located, was exposed to blockades, everyday shelling attacks and sniper fireduring the war (see judgments of ICTY, in the case of Galić, IT-98-29-T, 5 December 2003, and IT-9829-A, 30 November 2006, and judgments ICTY-a in the case of Dragomir Milošević, IT-98-29/1-T, 12 December 2007, and IT-98-29/1-A, 12 November 2009). There are also many evidence ondirect and indirect participations of the Yugoslav Army in military operations in Bosnia andHerzegovina (see paragraphs 15-17, above). This explains strong local opposition to the return ofpersons serving in the Yugoslav Army to pre-war homes (see paragraph 10 above), but does notjustify it. In that regard, the Court notes that there are no indication that the applicant, as a member 25of the Yugoslav Army, participated in military operations in Bosnia and Herzegovina or in any warcrimes. He was subjected to differential treatment exclusively because of the fact that he served inthe Yugoslav Army forces. It is well-known that the character of the recent war in Bosnia andHerzegovina is of that kind that serving in some armed force mostly reflected the ethnic affiliation.The RBiH Army force, that is loyal to the central authorities of Bosnia and Herzegovina, despitesome exceptions, was mostly composed of Bosniacs. The same applies to the HVO (consisted ofCroats mostly) and RS Army force (consisted of Serbs mostly). Similar models are noticed in theneighbouring countries. Therefore, the disputable measures, although they seem to beimpartial, resulted in a differential treatment of people based on their ethnic origin. In similarsituations, as a matter of principle, the Court has also held that no difference in treatmentwhich is based exclusively or to a decisive extent on a person’s ethnic origin is capable of beingobjectively justified in a contemporary democratic society (see Sejdić and Finci vs Bosnia andHerzegovina [GC], no. 27996/06 and 34836/06, § 44, 22 December 2009.; D.H. and Others vsCzech Republic [GC], no. 57325/00, § 176, ECHR 2007-XII; and Timishev vs Russia, nos.55762/00 and 55974/00, § 58, ECHR 2005-XII).

Bearing in mind the aforesaid, and the relevant case-law of the Constitutional Court andEuropean Court of Human Rights in this field, in my opinion, in the appellants’ case there is,without any dispute, a violation of the right to return under Article II(5) of the Constitution ofBosnia and Herzegovina and violation of right to property under Article 1 of Protocol no. 1 to theEuropean Convention because public authorities failed to fulfil its positive obligation and ensurethat the appellants, as a special and vulnerable category, return of their property in accordance withAnnex 7 and Law on Cessation of Application. In fact, the public authorities did not grant them therepossession of their property, along with the rights they used to have over that property until 30April 1991, i.e. on the day when they left it in their capacity as refugees or displaced persons, as onthe plot which is indisputably owned by them and in front of the very house, which is their home,for already 22 years since the signing of the Peace Agreement, an illegally built Orthodox Churchhas been in existence although the appellants are members of the Bosniac people – after the warminority on the territory of the Republika Srpska and they are forced to look at the church in theircourtyard on every day basis and also listen to the rituals and endure offences of the church visitors.This is hard for them regardless of the high degree of tolerance they have when it comes to bothethnic and religious affiliation. Therefore, in my opinion, the appellants’ appeal should have beengranted and the Republika Srpska should have been ordered, as a public authority, to fulfil itspositive obligation and ensure that the church is removed from the land of the appellants’ duringreasonable period of time.

It follows that I am absolutely incapable of agreeing with the conclusion adopted by themajority of judges of the Constitutional Court with regards to this issue. With due respect, I use thisopportunity to express my dissent.

This Separate Dissenting Opinion was joined by the President Mirsad Ćeman, Vice-President Margarita Tsatsa-Nikolovska and Judge Tudor Pantiru. In addition to joining the opinion,the Vice-President Margarita Tsatsa-Nikolovska also underlined that in the given situationcompetent authorities (the Basic Court, County Court and Supreme Court) applied “excessiveformalism” in adopting their decisions, without treating the essential issue of existence ofownership, interference with and violation of as provided for by and protected both under the lawand Constitution and Article 1 of Protocol no. 1 to the European Convention, which was sought bythe appellants in the proceedings. Any agreements and the existence of such should have been 26treated only as the manner of remedying the violation of the ownership right that has alreadyoccurred.

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