PARTLY DISSENTING OPINION OF JUDGE KJØLBRO

1 . I am in agreement with the judgment with the exception of one point where my view differs from that of the majority. Consequently, I voted against point 4 (a) of the operative provisions that reflects the majority ’ s reasoning in paragraph 71 of the judgment, where the Court has indicated as an individual measure that the respondent State has to ensure “the removal of the church from the applicant ’ s land, within three months from the date on which the judgment becomes final”.

2 . In my view, and for the reasons explained below, I find the individual measure indicated problematic as it does not take sufficient account of the fact that the present case concerns not only a dispute between the applicants and the respondent State, but also and in particular a dispute between the applicants and a private third party, the Drinjača Serbian Orthodox Parish (“the Parish”), which is not a party to the proceedings before the Court.

3 . As rightly pointed out by the majority (see paragraphs 68-69 of the judgment), it is only in exceptional situations that the Court under Article 46 will indicate individual measures to be adopted by a respondent State, and, in general, the Court will only do so when the finding of a violation “does not leave any real choice as to the measures required to remedy it” (see, for example, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005 ‑ IV).

4 . In the present case, the Court has, in its reasoning as well as the operative provisions, indicated that the respondent State has to ensure ”the removal of the church from the applicants ’ land, within three months from the date on which the judgment becomes final”. The present case, however, does not only concern a dispute between the applicants (seeking the return of the remaining part of the land and the removal of the church built on it) and the respondent State, but also a dispute between the applicants and the Parish (the owner of the church built on the disputed land).

5 . By ordering the removal of the church, the Court is, de facto , ruling on and deciding a dispute between two private parties, to the detriment of one the parties, the Parish, which is not a party to the proceedings before the Court and has not had a chance to express its legal views and defend its interests, not even as an intervening third party to the proceedings before the Court.

6 . By dissenting on this point, I am not expressing a view on how the dispute between the applicants and the Parish is to be decided. That is, in my view, an issue to be decided by domestic authorities in domestic proceedings, where the necessary procedural guarantees and the required balancing of interests can take place; it is not an issue to be decided by the Court.

7 . In this context, I draw attention to the following facts: The land in question was expropriated in 1997 and allocated to the third party (see paragraph 10 of the judgment). In 1998, the Parish built the church in question (see paragraph 11 of the judgment). The church has been in place and has been used by the Parish for more than 21 years now. In addition, in 2004, a planning permit was issued (see paragraph 15 of the judgment). Without expressing any view on the measures adopted by the domestic authorities when allocating the land to the Parish and issuing the planning permit, I cannot but notice that the Parish may, as a private party, rely on and invoke the rights set out in the Convention, including the right to respect for property as guaranteed by Article 1 of Protocol No. 1 to the Convention. How the dispute between the applicants and the Parish is to be decided is for the domestic courts to decide with the possibility of subsequently lodging an individual applicati on with the Court under Article 34 of the Convention.

8 . In the present case, the applicant had instituted civil proceedings against the Parish. Initially, the applicants had demanded the removal of the church and the restoration of the land in question (see paragraph 24 of the judgment). However, subsequently, and in the context of the civil proceedings, the applicants had amended their claim and asked the domestic courts to recognise the validity of an out-of-court settlement allegedly concluded between the parties (see paragraph 29 of the judgment), a claim that was ultimately dismissed since no agreement had been concluded as alleged by the applicants (see paragraph 35 of the judgment).

9 . In other words, in the context of the civil proceedings the domestic courts did not have a chance to rule on the merits of the dispute between the parties, that is the question of the removal of the church and the return of the land in question, and this is a direct consequence of the applicants ’ choice in the context of the domestic proceedings.

10 . If the present case had not involved the interests of a private third party, the Parish, I would have had no problem with the Court ordering or indicating the return of the land, but in the present case there is an underlying dispute between private parties with conflicting claims and interests, and the Court is deciding the dispute to the detriment of one of the parties, which, as mentioned, is not represented before the Court. That I do find very problematic.

11 . If the domestic courts had acted in a manner similar to the approach adopted by the majority in the present case, ordering the removal of a building and the return of land in proceedings to which the owner or a person with property rights was not a party and was unable to present its view and defend its interests, the Court would have found a clear violation of Article 6 of the Convention (see, for example, Gankin and Others v. Russia , nos. 2430/06 and 3 others, §§ 33-39, 31 May 2016, concerning the right to be informed of proceedings and be able to attend hearings and defend rights), as well as Article 1 of Protocol No. 1 to the Convention (see, for example, G.I.E.M. S.R.L. and Others v. Italy [GC] , nos. 1828/06 and 2 others, § 303, 28 June 2018, concerning procedural rights under Article 1 of Protocol No. 1).

12 . Although the Court has in many cases ordered or indicated the return of property to an applicant, it has nonetheless always borne in mind that there may be situations where the return of property is impossible de facto or de jure , inter alia on account of the rights and interests of third parties. That is why in such cases the Court has indicated the return of the property in question or, in the alternative, the payment of compensation equal to the actual value of the property in question (see, for example, Zwierzyński v. Poland (just satisfaction), no. 34049/96, §§ 13-16, 2 July 2002; Hodoş and Others v. Romania , no. 29968/96, §§ 72-73, 21 May 2002; Scordino v. Italy (no. 3) (just satisfaction), no. 43662/98, §§ 37-38, 6 March 2007; Budescu and Petrescu v. Romania , no. 33912/96, § 53-54, 2 July 2002; Cretu v. Romania , no. 32925/96, §§ 59-60, 9 July 2002; and Bălănescu v. Romania , no. 35831/97, §§ 36-37, 9 July 2002).

13 . In my view, that is what the Court could and should have done in the present case: indicate the removal of the church and return of the property in question or, in the alternative, the payment of compensation equal to the actual value of the land in question.

14 . That would have enabled the respondent State, under the supervision of the Committee of Ministers, to have the dispute decided in proceedings in which both parties would have a chance to put forward their legal arguments, the procedural rights set out in Article 6 of the Convention could have been respected and the balancing of interests required by Article 1 of Protocol No. 1 to the Convention could have taken place. The majority has, however, decided to interfere with the rights of a private third party, the Parish, which is not a party to the proceedings before the Court and has not had a chance to put forward any arguments, not even as a intervening third party before the Court.

15 . That having been said, I would like to add one final observation concerning the approach adopted by the Court in the present case: I wonder whether the measure complained of should be assessed under the State ’ s positive or negative obligations under Article 1 of Protocol No. 1 of the Convention.

16 . For the reasons stated in paragraphs 54 to 57 of the judgment, the Court proceeds on the basis that the case concerns the State ’ s positive obligations. However, the Court ’ s case-law is not always consistent on this point. In some cases concerning a State ’ s failure to comply with a final and binding domestic decision concerning property rights, the Court has assessed the State ’ s inaction as an interference with the applicant ’ s property under Article 1 of Protocol No. 1 to the Convention (see, for example, Iatridis v. Greece [GC], no. 31107/96, § 55, ECHR 1999 ‑ II; Antonetto v. Italy , no. 15918/89, § 34, 20 July 2000; Frascino v. Italy , no. 35227/97, § 32, 11 December 2003; and Paudicio v. Italy , no. 77606/01, § 42, 24 May 2007), Păduraru v. Romania , no. 63252/00, § 92, ECHR 2005 ‑ XII (extracts), ViaÅŸu v. Romania , no. 75951/01, § 59, 9 December 2008. However, as the Court has stated in many cases, the principles to be applied are the same (see, for example, Broniowski v. Poland [GC], no. 31443/96, § 144, ECHR 2004 ‑ V) and, therefore, had the Court decided to assess the case as a question of interference or negative obligations, the reasoning might have been different but the outcome of the case would have been the same.

[1] . Serbs are an ethnic group whose members may be natives of Serbia or of any other State of the former Yugoslavia . The term “Serb” is normally used to refer to members of the ethnic group, regardless of their nationality; it is not to be confused with the term “Serbian” which normally refers to nationals of Serbia.