Aнализа oсновних eлемената oпштег законског решења реституције у Србији из перспективе праксе Европског суда за људска права / Analiza osnovnih elemenata opšteg zakonskog rešenja restitucije u Srbiji iz perspektive Evropskog suda za ljudska prava (Analysis of Principal Elements of the General Restitution Statute of Serbia from the Perspective of the European Court of Human Rights Case-Law)
Dušan S. Rakitić
University of Belgrade, Faculty of Law / Правни факултет Универзитета у Београду / Pravni fakultet Univerziteta u Beograd
Annals of the Faculty of Law in Belgrade, pp. 212-234, February 2011
The European Court of Human Rights (ECtHR) has established a practice whereby states are afforded a wide margin of appreciation in the area of restitution, since this process concerns property rights and transpires along wide-ranging socio-economic changes. A general statute on restitution, providing for primacy of restitution in kind over compensation, was adopted in Serbia in September 2011.
Given the substantial number of statutes providing for partial in-kind restitution that were enacted in the past two decades, as well as given the fact that at least three laws that have remained in force have expressly promised enactment of such a law, the ECtHR would have deemed citizens of Serbia as already possessing a legitimate expectation of in-kind restitution, which made the adopted solution inevitable. Another issue is the interplay between the presently valid law on restitution of church and religious property, of 2006, and the new statute, for the two differ in terms of the mechanism for determining amount of compensation owed to respective beneficiaries in cases when restitution in kind is not possible. Analysis of ECtHR case-law suggests that a state may differentiate between various categories of beneficiaries in respect of terms of restitution provided that the aim of differentiation is legitimate and that the differentiation constitutes adequate means for achievement of such aim.
A question arose whether the statute providing for in-kind restitution in all cases in which it is possible, and affording compensation in an amount smaller than full market value in all cases in which in-kind restitution is objectively impossible, will survive scrutiny of the ECtHR. Аnalysis of several exemplary judgments hints at probability that such a provision will be upheld, since the persons condemned to below-market value compensation would succeed neither in proving that they were afforded a legitimate expectation to receive full marketvalue of their properties by such a legislative act, nor that they possessed appropriate right protected by the Convention at the time of enactment of the subject statute.
Note: Downloadable document is in Serbian.
Number of Pages in PDF File: 23
Keywords: Реституција, Натурална реституција, Денационализација, Поље слободне процене, Европски суд за људска права, Restitucija, Naturalna restitucija, Denacionalizacija, Polje slobodne procene, Evropski sud za ljudska prava, Restitution, In-kind restitution, Denationalization, Margin of appreciation
JEL Classification: K11, K13Accepted Paper Series
Date posted: March 13, 2012
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