Djordjevic against Serbia

On September 9, 2025, the European Court of Human Rights (hereinafter: the Court) rendered, and on October 7 of the same year, published its judgment in the caseĐorđević v. Serbia, number 11212/23.

It's a verdictbroughtseven-member Council.

The panel unanimously rendered a verdict regarding the violation of the right to respect for private and family life from Article 8 of the Convention, while it decided by a majority vote (5:2) regarding the violation of the right to peaceful enjoyment of property.

The judgment has not yet become final.

THE CIRCUMSTANCES CASES

The applicant (hereinafter: the applicant) was the owner of an apartment (studio) located on the ground floor of the building in Zahumska street number 43, and that the company "JINPROS" d.o.o. from Belgrade (Novi Beograd) built a business-residential building with floor + floor + 5. The applicant claimed that due to the construction of a new building in the immediate vicinity, her apartment was left without natural light, that her daily functioning was hampered, i.e. reading, housework, etc., that she is in constant "half-darkness" and that she is forced to use artificial light all the time. In this regard, the applicant addressed letters and complaints to the investor - the company "JINPROS" d.o.o. from Belgrade (New Belgrade), the City of Belgrade - the Secretariat for Urban Planning and Construction Affairs - the Building Inspection, the Urban Inspection of the then Ministry for Capital Investments, etc.

Acting on the applicant's complaint, the republican urban inspector in his report No. 350-01-01203/2004-06 dated April 25, 2005, stated, among other things, that it was necessary for the competent authority (Secretariat for Urbanism and Construction Affairs of the City of Belgrade) to pay special attention when defining the distance of the planned building from the neighboring existing buildings, so that the living conditions of the existing neighboring residential buildings would not deteriorate. Also, in the aforementioned minutes, the urban inspector ordered the Secretariat for Urban Planning and Construction Affairs to review the extract from the urban plan, as well as the conceptual project based on which approval was issued for the construction of the building at Zahumska Street 45, regarding the definition of the construction plot (in the extract and conceptual project - situational plan), as well as the definition of the side building lines according to the existing neighboring buildings. In the petition, the petitioner states that the City of Belgrade - Secretariat for Urbanism and Construction Affairs ignored the order of the republic's urban planning inspector, and that the investor built the building in such a way that the petitioner's apartment was largely deprived of daylight.

Pursuant to the above, the applicant filed a lawsuit before the First Basic Court in Belgrade against the City of Belgrade - the Secretariat for Urban Planning and Construction Affairs and the investor - the company "JINPROS" d.o.o. from Belgrade (Novi Belgrade), by which she requested that the defendant jointly and severally pay her the amount by which the market value of her apartment was reduced in the name of damages.

The first basic court in Belgrade adopted the claim by the judgment P. 53595/2010 of May 5, 2010 and obliged the defendants to jointly and severally pay the applicant an amount of RSD 825,440.00 with statutory default interest from March 12, 2009 until payment, as well as to compensate her for the costs of the litigation. The Appellate Court in Belgrade, ruling on the appeals of the defendants, found that they were well-founded, and by decision Gž. 2316/11 of July 10, 2012, annulled the first-instance verdict and returned the case to the First Basic Court in Belgrade for a new decision.

After the new first-instance proceedings were conducted, the First Basic Court in Belgrade rejected the claim in its entirety and ordered the applicant to pay the defendants a sum of money for the costs of the litigation.

As the applicant filed an appeal against the new first-instance verdict of July 15, 2016, the Court of Appeal in Belgrade, by the verdict of Ms. 81/17 of April 6, 2017 partially adopted the submitted appeal, by changing the first-instance judgment and obliging the defendant investor - the company "JINPROS" d.o.o. from Belgrade (Novi Beograd) to pay the applicant the amount of 825,440.00 dinars with statutory default interest starting from March 12, 2009 until payment, in the name of compensation for damages due to the decrease in the market value of the apartment, and obliged the mentioned company to pay the applicant the amount of the costs of the civil proceedings, as well as the costs of the second-instance proceedings. The Court of Appeal in Belgrade confirmed the first-instance verdict of July 15, 2016, in the part that rejected the claim against the defendant, the City of Belgrade.  - Secretariat for Urban Planning and Construction Affairs. Namely, the Appellate Court in Belgrade, in the judgment of Gž. 81/17 of April 6, 2017 took the position that the defendant investor is obliged to pay the applicant compensation, since due to the construction of the neighboring building, the market value of her apartment decreased by 20%, which represents a fifth of the value and indicates that it is not negligible damage. Also, the second-instance court took into account that the suffering of the applicant can be seen in everyday life, that it is half dark in the apartment, that it is not possible to read and do housework without artificial light in such daylight, etc.

The investor - the company JINPROS d.o.o. from Belgrade (Novi Belgrade) declared an audit against the judgment of the Appellate Court in Belgrade Gž. 81/17 of April 6, 2017.

Supreme Court of Cassation the court with its verdict Rev. 2222/2017 of June 21, 2018 amended the aforementioned judgment, by rejecting the applicant's appeal as unfounded and confirming the rejection of the claim against the investor, as well as the applicant's obligation to compensate the investor for the costs of the litigation. Also, the Supreme Court of Cassation changed the second-instance verdict of April 6, 2017, also in the part concerning the costs of the second-instance proceedings, by rejecting the applicant's request for compensation for the same. The judgment of the Supreme Court of Cassation Rev. 2222/2017 of June 21, 2018 was corrected by a special decision Rev.. 2222/2017 of January 10, 2019.

The Supreme Court of Cassation took the opposite legal position in relation to the Court of Appeal in Belgrade. According to the explanation of the verdict of the Supreme Court of Cassation, the damage did not occur because the applicant did not sell the apartment, and it does not follow from the expert's findings that she did. due to established irregularities, it is not possible to sell. According to the position of the Supreme Court of Cassation, the defendant company operated the said facility with the approval of the competent authorities, i.e. in everything according to the established urban planning conditions and decisions of the City of Belgrade, in relation to which the claim was rejected. The restrictions suffered by the defendant are, according to the Supreme Court of Cassation, necessary considering the part of the city in which she lives and its size.

The applicant, dissatisfied with the verdict of the Supreme Court of Cassation, filed a constitutional complaint with the Constitutional Court, complaining about the violation of the right to a fair trial, the right to equal legal protection of rights and the right to property, guaranteed by the provisions of Article 32 paragraph 1, Article 36 paragraph 1 and Article 58 of the Constitution of the Republic of Serbia.

By decision Už-2248/2019 of December 28, 2022, the Constitutional Court rejected the applicant's constitutional appeal, judging that the allegations from the constitutional appeal cannot be accepted as relevant constitutional reasons to argue claims about the violation of the right to a fair trial, but the Constitutional Court, in essence, is asked to assess the legality of the contested verdict as an instance court, and dismissed the other complaints.

COMPLAINTS APPLICANTS AND THE PROCEDURE BEFORE THE COURT

The applicant submitted a petition to the Court on March 6, 2023.

In the petition, she complained about the violation of the right to respect for private and family life and the right to peaceful enjoyment of property from Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, claiming that due to the construction of a residential building near her apartment, she was prevented from using it normally due to the lack of natural light and ventilation, and that the value of that apartment was significantly reduced.

THE DECISION THE COURT

The Court did not accept the Government's complaint that the applicant had abused her right to file an application, because she sold the apartment in 2019, before she submitted the application to the Court. Namely, although the Court noted that the applicant sold the apartment in 2019, it accepted the statement of the building manager that she lived in the apartment continuously even after the sale of the real estate and assessed that the fact of the sale of the apartment is not important. Also, the Court assessed that there is no indication that by omitting the fact that the applicant sold the apartment she intentionally misled the Court or knowingly presented any untrue facts relevant to her complaints, and rejected the Government's complaint. 

• Article 8 of the Convention

The court rejected the Government's objection that the applicant did not properly exhaust domestic legal remedies because in her constitutional appeal she did not complain about the violation of her right to respect for her home, as guaranteed by Article 8 of the Convention, because it assessed that, although she did not explicitly refer to that provision, in her constitutional appeal she complained about the judgments of the domestic courts claiming that the construction of the new building caused her harm due to the deterioration of the living conditions in her apartment due to the lack of natural light, ventilation and direct sunlight.

The Court recalled that the purpose of Article 8 of the Convention, in addition to protection from the interference of authorities in the rights of individuals, also includes the adoption of measures by those authorities designed to ensure respect for private life and home and in relationships between individuals, in a situation where someone is prevented from enjoying the comforts of his home.

Furthermore, the Court noted that the domestic courts ignored the expert's conclusions, which established that, due to the close proximity of the newly built residential building to the applicant's apartment located on the ground floor, there was no access to direct sunlight and that there was little ventilation, and that consequently the apartment in question had been turned into a basement, which made it impossible to read or do anything without artificial lighting. The domestic courts limited themselves to the ownership of the new building and the assessment of the decrease in the value of the applicant's apartment.

The court took into account the applicant's vulnerability, bearing in mind that she is an elderly person and that she is a librarian by profession, so by nature of her job she reads a lot. In these circumstances, the Court assessed that the lack of natural light and ventilation made the applicant's daily life more difficult than would normally be expected.

Taking into account the findings of the expert and the applicant's personal circumstances, the Court concluded that the state did not approach the disputed issue with due care and did not properly consider the conflicting interests, thereby failing to fulfill its positive obligation to ensure the applicant's right to respect for home and private life.

Following the above, the Court isdetermined the injury the right to respect for private and family life from Article 8 of the Convention.

• Article 1 of Protocol No. 1 to the Convention

The court started from the fact that, according to the findings of the expert, the market value of the applicant's apartment was reduced by 20%, which was not contested by the domestic courts that rejected her claim for other reasons, as well as that the Supreme Court of Cassation, in its decision after the review of one of the defendants, took the view that the reduction in value was not significant, without disputing its amount.

However, the Court assessed that the 20% decrease in the value of the applicant's apartment is significant, even if the building was built in accordance with all the issued permits, which is not the case. In terms of certain irregularities in the permits issued to the investor that were determined by the Construction Inspection of the City of Belgrade, the Court emphasized the importance of the principles of good administration and that the risk of any error by a state authority must be borne by the state itself, with the observation that domestic authorities did not react at all to the findings of the Construction Inspection of the City of Belgrade regarding irregularities.

When deciding, the court also took into account the judgments of the Supreme Court of Cassation, in which the position was taken that significant damage exists if it amounts to 20% when the residential building was built in accordance with the issued permits, but that in the specific case he did not take the same position.

Taking into account the irregularities during the issuance of the permit to the investor who was granted approval for the construction of a residential building, which significantly reduced the value of the applicant's apartment without compensation offered to the applicant and taking a position contrary to that expressed in comparable cases by the Supreme Court of Cassation, the Court assessed that the domestic authorities did not ensure a fair balance between the general interest and the interest of the applicant.

Accordingly, the Court isfound a violation of the right to peaceful enjoyment of property from Article 1 of Protocol No. 1 to the Convention(with 5 votes for and 2 against).

FAIRLY SATISFACTION (Article 41 of the Convention)

The court obliged the Republic of Serbia to pay the applicant the amount of 7,000 euros with statutory default interest calculated from March 12, 2009, the amount of 6,000 euros for non-material damage and the amount of 5,685 euros for the compensation of the costs of the procedure.

SEPARATEA OPINIONA JUDGEKTISTAKIS INÍ RAIFEARTAIGH

JudgeKtistakisreferring to the decisions of the domestic courts and their finding that the value of the applicant's apartment was reduced by 20% due to the proximity of the new building, raised the question of the possibility of determining the decrease in the market value of the applicant's apartment during the proceedings before the Court, knowing that the applicant sold the apartment in question in 2019, four years before the application was submitted.

Judge Ktistakis further pointed out that, even if it were accepted that the market value of the apartment was reduced by the specified percentage, states in the field of urban planning enjoy a wide field of free assessment even when these measures lead to a loss of property value, and that the provision of Article 1 of Protocol No. 1 to the Convention does not guarantee the right to retain the value of the property and does not prevent urban development policies from having negative consequences for apartment owners.

Finally, the judge Ktistakis considers that compensation cannot be demanded for the violation of the right to peaceful enjoyment of property provided for in Article 1 of Protocol No. 1 to the Convention for the loss of the market value of the apartment in the mentioned percentage, given that it is located in the center of the capital of Europe, and the relevant permits have not been challenged or canceled by the domestic administrative courts.

JudgeNí Raifeartaighjoined the dissenting opinion of the judgeKtistakis- a and supported his argumentation, but she also pointed out that the actual financial loss of the applicant is not known, because she did not indicate the selling price to the Court, and that the residential building was built in accordance with the regulations, despite the irregularities.

For the above reasons, judgesKtistakis andNí Raifeartaightook the position that the applicant's right to peaceful enjoyment of property from Article 1 of Protocol No. 1 to the Convention was not violated.