THE SPARK D.O.O. Belgrade against Serbia

On October 14, 2025, the European Court of Human Rights (hereinafter: the Court) passed, and on the 18  in November of the same year announced the verdict in the caseIskra D.O.O. against Serbia, number 53002/21.

It's a verdictbroughtseven-member Council.

THE CIRCUMSTANCES CASES

The applicant company (hereinafter referred to as: the applicant company) initiated civil proceedings for interference with the state before the Commercial Court in Belgrade against the company "Millenium Team"d.o.o. from Belgrade in the capacity of the first defendant and the company "Beograd na vodi" d.o.o. from Belgrade as the second defendant, because the workers of the first defendant, otherwise hired by the second defendant to perform construction works, on May 8, 2015, demolished the fence built of cinder blocks on the floor. plot 450 WHO Savski Venac (old survey). Also, the subject of the state's lawsuit was the event of June 24, 2015, when the workers of the first defendant took away the state's property of the applicant's company over the land (yard) located on the floor. plot 460 WHO Savski venac (old survey).

The Commercial Court in Belgrade, by decision P. 2297/2016 of May 5, 2017, found that the defendant companies disturbed the state of the applicant company on May 8, 2015 and June 24, 2015, but rejected the claim in the part in which it was requested that the defendants refrain from further disturbing the state and to return the state of the applicant company to its previous state. Given that the applicant company and the defendant filed appeals against the decision of May 5, 2017, the Commercial Court of Appeal, by decision Pž. 3793/17 of July 13, 2017, rejected the appeals and confirmed the first-instance decision in the part in which it was established that there was a disturbance of the state on May 8, 2015 on the floor. plot 450 WHO Savski Venac (old survey), i.e. on June 24, 2015, floor no. parcel 460 WHO Savski venac (old survey), while in the remaining part he canceled the first-instance decision of May 5, 2017 and sent the case back for retrial.

The Commercial Court in Belgrade, with a new decision P. 4027/2017 of January 17, 2019, adopted the claim of the applicant company and ordered the defendants, under the threat of fines, to refrain from further disturbing the state property, and ordered them to return the state property to the applicant company in its previous state. Bearing in mind that the defendants filed an appeal against the above-mentioned decision, the Commercial Court of Appeal issued the decision Pž. 1697/19 of April 10, 2019, which modified the first-instance decision of January 17, 2019, by rejecting the claim of the applicant company to order refraining from further disturbing the state under the threat of fines and restoring the state to its previous state.

Dissatisfied with the outcome of the proceedings before the commercial court, the applicant company filed a constitutional appeal against the decision of the Commercial Court of Appeal in Pž. 1697/19 of April 10, 2019, complaining about the alleged violation of the right to a fair trial and the right to property from Article 32, paragraph 1 and Article 58, paragraph 1 of the Constitution of the Republic of Serbia.

By decision Už-5869/2019 of December 3, 2020, the Constitutional Court rejected the constitutional appeal of the applicant company, because it took the position that the contested decision of the Commercial Court of Appeal contains a constitutionally acceptable explanation, and that the Constitutional Court is required to, in essence, act as a court of instance and assess the legality of the act in question.

Also, bearing in mind that a special law was passed[1] which determined the public interest in the expropriation of land for the implementation of the "Belgrade on the Water" project, and which, among other things, regulated the issue of land expropriation for this purpose, the Constitutional Court stated that such a question was not raised before it, that is, that the applicant company did not indicate that it  the land was confiscated without any compensation, so the allegations of violation of the right to property in this particular case are not constitutionally acceptable.

COMPLAINTS COMPANIES OF THE APPLICANT AND THE PROCEDURE BEFORE THE COURT

The applicant company submitted a petition to the Court on October 15, 2021.

In the petition, she complained about the violation of the right to a fair trial from Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) due to the allegedly wrong and arbitrary application of the relevant regulations, as well as the violation of the right to peaceful enjoyment of property from Article 1 of Protocol No. 1 to the Convention, because the second-instance court, by its decision, prevented the removal of the harmful consequences of confiscation of the state-owned company from the petitioner.

THE DECISION THE COURT

The court stated that proceedings concerning a civil dispute between private persons do not in themselves assume the responsibility of the state under Article 1 of Protocol No. 1 to the Convention, if the state only, through its judicial system, provides a "court" to resolve the dispute. Article 1 of Protocol No. 1 to the Convention is applicable if the subject of the dispute and material provisions involved the state in a regulatory capacity or court orders to the parties were in the public interest.

The court further noted that the Government of the Republic of Serbia (hereinafter: the Government) designated the "Belgrade on the Water" project as a strategic priority and a project of special interest for the Republic of Serbia, and that the Government passed special laws and regulations and established the company Belgrade on the Water d.o.o. with the aim of complete control over the execution of the project. Company Belgrade na vodi d.o.o. it did not enjoy complete independence from the state and therefore its actions can be attributed to it.

Finally, the Court stated that the fact that a country's domestic laws do not recognize a certain interest as a "right", or even a "property right", does not necessarily prevent the interest in question, in certain circumstances, from being considered "property" within the meaning of Article 1.Protocol no. 1 to the Convention.

Proceeding from the fact that the fence of the applicant company, which was built in 1964, was owned by it, and that the applicant company had the right to land (yard) which was taken from it by the company Beograd na vodi d.o.o. and used that land for business purposes, the Court concluded that there is a "proprietary interest" of the applicant company which the provisions of Article 1 of Protocol No. 1 to the Convention recognize and protect.

Since the domestic courts in the procedure for interference with the state recognized that there was an interference with the right to peaceful enjoyment of the property of the applicant company, In this context, the court stated that, according to the relevant domestic legislation, any demolition must be carried out in accordance with the regulated procedure, including the adoption of an appropriate decision in the administrative procedure and compliance with the relevant rules for the execution of such a decision.

The court also noted that these procedures, including the right to appeal and/or the right to initiate an administrative dispute before a competent court, are part of the procedural legal framework designed to provide protection against arbitrariness, but that this legal framework, as is evident from the facts of the present case, in fullwasbypassed.The court therefore concluded that ktherefore denied to the applicantadequate procedural guarantees against arbitrariness, including the ability to effectively challenge the interference in question in his right to peaceful enjoyment of his property.

The court noted that there is a special law on the "Belgrade on the Water" project, but considers that the mere existence of this law cannot, by itself, negate the right of the applicant company to a fair procedure in connection with the demolition of the fence and occupation of the land (yard). In this regard, the Court pointed out that the aforementioned special law prescribes the application of general laws, when not otherwise specified.

The court concluded that the interference with the right to the property of the applicant company was not legal, so it did not assess its legitimate aim and proportionality.

Accordingly, the Court determined that there had been a violation of the rights referred to in Article 1 of Protocol No. 1 to the Convention.

FAIRLY SATISFACTION (Article 41 of the Convention)

The court obliged the Republic of Serbia to pay the applicant company the sum of 3,000 euros for non-material damages and the sum of 3,000 euros for the costs of the proceedings.

The court rejected the request of the applicant company for compensation for material damage due to the absence of a causal connection between the injury and the alleged damage suffered, as well as because the applicant company was not the owner of the subject land (yard) in connection with which it claimed compensation for material damage.