АНАЛИЗА ОСНОВНИХ ЕЛЕМЕНАТА ОПШТЕГ ЗАКОНСКОГ РЕШЕЊА РЕСТИТУЦИЈЕ У СРБИЈИ ИЗ ПЕРСПЕКТИВЕ ПРАКСЕ ЕВРОПСКОГ СУДА ЗА ЉУДСКА ПРАВА
ANALYSIS OF PRINCIPAL ELEMENTS OF THE GENERAL RESTITUTION STATUTE OF SERBIA FROM THE PERSPECTIVE OF THE EUROPEAN COURT OF HUMAN RIGHTS CASE-LAW

Summary/Abstract: 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.

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