ĆALDOVIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
1. Mr Ivan Ćaldović, Mr Milisav Petković and Mr Milorad Ivanović are citizens of Bosnia and Herzegovina and citizens of Serbia who were born in 1955 and 1950, respectively. Ms Danica Mikić is a citizen of Serbia who was born in 1938. All the applicants live in Serbia. 2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić. 3. The Serbian Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right. 4. The applicants or their spouses were officers of the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia (“the SFRY”). The present case concerns their attempts to repossess their pre-war flats in Bosnia and Herzegovina. 5. Practically all flats in the former SFRY were part of the system of “social ownership”. They were generally built by socially owned enterprises or other public bodies for allocation to their employees, who became “occupancy right holders”. All citizens of the SFRY were required to pay a means-tested contribution to subsidise housing construction. However, the amount an individual had contributed was not amongst the legal criteria taken into account with regard to waiting lists for the allocation of such flats. 6. On 6 January 1991 JNA members were offered the opportunity to purchase their flats at a discount on their market value (see the Military Flats Act 1990, Zakon o stambenom obezbjeđivanju u Jugoslovenskoj narodnoj armiji, Official Gazette of the SFRY no. 84/90). Between 1980 and 1988 the applicants, or their spouses, were allocated military flats in Sarajevo (Mr Ćaldović, Mr Petković and Mr Ivanović) and in Mostar (Ms Mikić) which they later purchased under the terms of the Military Flats Act 1990. 7. On 18 February 1992 Bosnia and Herzegovina suspended the sale of military flats on its territory (see the Suspension on the Sale of Flats Decree 1992, Uredba o privremenoj zabrani prodaje stanova u društvenoj svojini, Official Gazette of the Socialist Republic of Bosnia and Herzegovina no. 4/92). The Decree was respected in what is today the Federation of Bosnia and Herzegovina, and those who had purchased military flats located in that Entity could not register their ownership and remained, strictly speaking, occupancy right holders (a purchase contract does not of itself transfer title to the buyer under domestic law). 8. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicants, or their spouses, continued their military careers in the VJ forces and left their flats. They were thereafter allocated tenancy rights of unlimited duration on military flats in Serbia, which some of them even purchased later. 9. During the war, the local armed forces (namely, the ARBH, HVO and VRS forces) assumed nominal control of all non-privatised military flats on the territory under their respective control (Zakon o preuzimanju sredstava bivše Socijalističke Federativne Republike Jugoslavije u svojinu Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/92, 13/94, 50/95 and 2/96; Odluka o preuzimanju vojnostambenog fonda JNA, Official Gazette of the Republika Srpska no. 16/92; Zakon o sredstvima i finansiranju Armije Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/93, 17/93 and 13/94; Odluka o utvrđivanju namjene i prenošenju prava upravljanja i korištenja sredstvima bivše Socijalističke Federativne Republike Jugoslavije, koje je koristila bivša JNA, a koja se nalaze na području Federacije Bosne i Hercegovine; Official Gazette of the Republic of Bosnia and Herzegovina no. 24/96). Although on 1 January 2006 those forces merged into the armed forces of Bosnia and Herzegovina, non-privatised military flats are still under the nominal control of the Entities. 10. A more detailed background concerning socially owned flats, military flats and the involvement of foreign armed forces in the 1992-95 war in Bosnia in Herzegovina is provided in Đokić v. Bosnia and Herzegovina, no. 6518/04, §§ 5-17, 27 May 2010 and Mago and Others v. Bosnia and Herzegovina, nos. 12959/05, 19724/05, 47860/06, 8367/08, 9872/09 and 11706/09, §§ 5-8, 3 May 2012. 11. The facts of the case, as submitted by the parties, may be summarised as follows. 12. In 1988 the applicant, a JNA officer, was allocated a military flat in Sarajevo. 13. On 4 March 1992 the applicant bought that flat under the terms of the Military Flats Act 1990 and paid the full purchase price in the amount of 636,330 Yugoslav dinars (around 7,486 German marks (DEM) at the time). 14. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, he continued his military career in the VJ forces and left Sarajevo. 15. On 10 October 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina (Ministarstvo odbrane Federacije Bosne i Hercegovine; “Ministry of Defence”) allocated the flat to a family of a killed member of the ARBH forces. 16. On 18 August 1998 the applicant applied for the restitution of his flat in Sarajevo. 17. On 28 March 2002 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. The applicant failed to appeal against that decision. 18. On 9 July 2002 the restitution commission set up by Annex 7 to the Dayton Peace Agreement, before which the applicant pursued parallel proceedings, held that the applicant was neither a refugee nor a displaced person within the meaning of Annex 7 and declined jurisdiction. On 19 November 2002 the restitution commission rejected the applicant’s request for reconsideration of his claim. 19. On 4 November 2003 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the 1995 General Framework Agreement for Peace) about the inability to repossess his pre-war flat. 20. On 2 August 2005 the Human Rights Commission (the legal successor of the Human Rights Chamber) rejected his case on non-exhaustion grounds as he had failed to appeal against the first-instance decision of 28 March 2002 (see paragraph 17 above). 21. On 29 July 2011 the applicant was allocated tenancy right of unlimited duration on a military flat in Belgrade. 22. It would appear that the applicant has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 59 below). 23. In 1980 the applicant’s husband, a JNA officer, was allocated a military flat in Mostar. 24. On 13 February 1992 the applicant’s husband bought that flat under the terms of the Military Flats Act 1990. It would appear that the whole purchase price was covered by the contribution he had paid for the housing construction (see paragraph 5 above). 25. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant’s husband continued his military career in the VJ forces and was killed on 16 June 1992 in a military action near Mostar. 26. On 27 May 1996 the applicant was allocated tenancy right of unlimited duration on a military flat in Novi Sad, Serbia. On 15 April 1999 she purchased that flat. 27. On 9 October 1998 the applicant applied to the competent domestic authorities for the restitution of the flat in Mostar (in accordance with the Housing Act 1984, which is still in force, spouses share occupancy rights). 28. On 25 September 2003 her application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. 29. On 3 February 2004 the competent Ministry of the Herzegovina-Neretva Canton upheld the first-instance decision of 25 September 2003. 30. On 24 January 2005 the Ministry of Defence allocated the flat to D.L., a member of the HVO forces. 31. On 24 February 2005, following an application for judicial review, the Mostar Cantonal Court upheld the second-instance decision of 3 February 2004. 32. On 19 September 2007 the Supreme Court of the Federation of Bosnia and Herzegovina upheld the decision of 24 February 2005. 33. It would appear that the applicant has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 59 below). 34. In 1983 the applicant, a JNA officer, was allocated a military flat in Sarajevo. 35. On 11 February 1992 the applicant bought that flat under the terms of the Military Flats Act 1990 and paid the full price in the amount of 153,500 Yugoslav dinars (around DEM 1,823 at the time). 36. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, he continued his military career in the VJ forces and left Sarajevo. His military service was terminated in 2003. 37. On 5 February 1997 the Ministry of Defence allocated the flat to S.H., a member of the ARBH forces. 38. In 29 December 2000 the competent domestic authority rejected the applicant’s request for restitution of his flat in Sarajevo pursuant to section 3a of the Restitution of Flats Act 1998. It would appear that the applicant did not appeal against that decision. 39. On 2 September 2003 the restitution commission set up by Annex 7 to the Dayton Peace Agreement, before which the applicant pursued parallel proceedings, accepted his application for the restitution. However, on 21 October 2005 the restitution commission accepted the request for reconsideration submitted by the Ministry of Defence and quashed its decision of 2 September 2003. 40. On 11 December 2007 the applicant was allocated tenancy right of unlimited duration on a military flat in Ćuprija, Serbia. 41. On 12 March 2008 the applicant made a new application for the restitution of his flat. On 17 April 2008 the competent domestic authority rejected his application pursuant to section 39e of the Privatisation of Flats Act 1997. 42. On 13 June 2008 the competent Ministry of the Sarajevo Canton upheld the first-instance decision of 17 April 2008. 43. On 21 October 2008, following an application for judicial review, the Sarajevo Cantonal Court upheld the second-instance decision of 13 June 2008. 44. On 23 November 2012 the Constitutional Court of Bosnia and Herzegovina found a violation of Article 1 of Protocol No. 1 to the Convention in the applicant’s and thirty-one other cases (decision no. AP 1370/08) as regards the method of determining the amount of compensation envisaged under section 39e of the Privatisation of Flats Act 1997, in line with its decision no. U 15/11 of 30 March 2012 (see paragraph 59 below). 45. It would appear that the applicant has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 59 below). 46. In 1983 the applicant, a JNA officer, was allocated a military flat in Sarajevo. 47. On 17 January 1992 the applicant bought that flat under the terms of the Military Flats Act 1990 and paid the full price in the amount of 171,369 Yugoslav dinars (around DEM 2,637 at the time). 48. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, he continued his military career in the VJ forces and left Sarajevo. 49. On 24 August 1998 the applicant applied for the restitution of his flat in Sarajevo. 50. On 28 March 2002 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. 51. On 27 November 2002 the competent Ministry of the Sarajevo Canton quashed the first-instance decision of 28 March 2002 for procedural reasons. After having examined the applicant’s request, it rejected it on the same date pursuant to section 3a of the Restitution of Flats Act 1998. 52. On 25 August 2005 the Ministry of Defence allocated the impugned flat to A.M., a member of the ARBH forces. 53. The applicant, in the meantime, complained to the Human Rights Chamber about the inability to repossess his pre-war flat and about the length of the proceedings for repossession. 54. On 9 February 2005 the Human Rights Commission found that there had been a violation of Article 6 of the Convention as regards the length of the proceedings for repossession and awarded the applicant 1,000 convertible marks (BAM; approximately 50 euros) in respect of pecuniary and non-pecuniary damage. As regards the complaint about the inability to repossess the pre-war flat, the Commission held that there had been no violation of Article 1 of Protocol No. 1 to the Convention. 55. On 29 January 2007, following an application for judicial review, the Sarajevo Cantonal Court upheld the second-instance decision of 27 November 2002 (see paragraph 51 above). 56. On 5 April 2007 the applicant lodged a constitutional appeal. On 17 September 2009 the Constitutional Court rejected his appeal as manifestly ill-founded. 57. In the meantime, on 20 April 2007 the applicant received compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 59 below) in the amount of BAM 21,098.40 (approximately 10,787.44 euros). 58. On 11 May 2011 the applicant was allocated tenancy right of unlimited duration on a military flat in Belgrade. 59. On 22 December 1995 all purchase contracts concluded under the Military Flats Act 1990 were declared void (Zakon o preuzimanju sredstava bivše Socijalističke Federative Republike Jugoslavije u svojinu Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/92, 13/94, 50/95 and 2/96). Thereafter, the legislation regulating this matter, the Privatisation of Flats Act 1997 (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette of the Federation of Bosnia and Herzegovina nos. 27/97, 11/98, 22/99, 27/99, 7/00, 32/01, 61/01, 15/02, 54/04, 36/06, 51/07, 72/08 and 23/09) and the Restitution of Flats Act 1998 (Zakon o prestanku primjene Zakona o napuštenim stanovima, Official Gazette of the Federation of Bosnia and Herzegovina nos. 11/98, 38/98, 12/99, 18/99, 27/99, 43/99, 31/01, 56/01, 15/02, 24/03, 29/03 and 81/09), underwent numerous changes and all such contracts were declared legally valid. However, two categories of buyer are not entitled to repossess their flats and to register their title to them (see section 39e of the Privatisation of Flats Act 1997 and section 3a of the Restitution of Flats Act 1998). The first category concerns those who served in foreign armed forces after the 1992-95 war. The second concerns those who acquired occupancy or equivalent rights to a military flat in a successor State of the SFRY, like the present applicants. However, they are now entitled to compensation under section 39e of the Privatisation of Flats Act 1997. While the compensation had initially been envisaged as the refund of the amount paid for the flats in 1991/92 plus interest at the rate applicable to overnight deposits, on 30 March 2012 the Constitutional Court (decision no. U 15/11) declared that method of determining the amount of compensation unconstitutional and ordered the Parliament of the Federation of Bosnia and Herzegovina to amend it in line with Đokić (cited above, §§ 63 and 72). 60. For a more detailed analysis of the relevant domestic law and practice and of the relevant international documents, see Đokić (cited above, §§ 35-45) and Mago and Others (cited above, §§ 53-69). D. Relevant Serbian legislation 61. It has no longer been possible to acquire occupancy rights in Serbia since 1992 (see section 30(1) of the Housing Act 1992, Zakon o stanovanju, Official Gazette of Serbia nos. 50/92, 76/92, 84/92, 33/93, 53/93, 67/93, 46/94, 47/94, 48/94, 44/95, 49/95, 16/97, 46/98, 26/01, 101/05 and 99/11). Instead, current and retired members of the armed forces and current and retired staff of the Ministry of Defence have thereafter been entitled to equivalent tenancy rights of unlimited duration on military flats or, in case of a lack of suitable flats, mortgage loans co-financed by the State on condition that they or their spouses or children do not have occupancy or equivalent rights to a flat in any of the former Republics of the SFRY (the Military Housing Ordinance 1994, Pravilnik o načinu i kriterijumima za rešavanje stambenih pitanja zaposlenih u Saveznom ministarstvu za odbranu i Vojsci Jugoslavije, Official Gazette of the Federal Republic of Yugoslavia nos. 30/94, 39/94 and 6/96; the Military Housing Ordinance 1995, Pravilnik o načinu i kriterijumima za davanje stanova u zakup i dodeljivanje stambenih zajmova za rešavanje stambenih pitanja zaposlenih u Vojsci Jugoslavije, Official Gazette of the Federal Republic of Yugoslavia nos. 5/95, 18/96, 56/96, 58/96, 42/97 and 9/00; the Military Housing Ordinance 2002, Pravilnik o načinu, kriterijumima i merilima za davanje stanova u zakup i dodeljivanje stambenih zajmova za rešavanje stambenih pitanja zaposlenih u Ministarstvu odbrane i Vojsci Srbije i Crne Gore, published in an internal gazette of the Ministry of Defence nos. 20/02, 36/03, 34/04 and 29/05; the Military Housing Ordinance 2005, Pravilnik o rešavanju stambenih pitanja u Ministarstvu odbrane, published in an internal gazette of the Ministry of Defence nos. 38/05, 16/08, 26/08 and 39/08; and the Military Pensioners Ordinances 1994 and 2010, Pravilnik o rešavanju stambenih potreba korisnika vojnih penzija, published in an internal gazette of the Ministry of Defence nos. 31/94, 19/95, 26/96, 1/97 and 45/08 and Pravilnik o rešavanju stambenih potreba korisnika vojnih penzija, published in an internal gazette of the Ministry of Defence no. 34/10). Therefore, those who occupied military flats in Bosnia and Herzegovina before the war have as a rule been required to give up their rights to those flats in order to qualify for a military flat or a loan in Serbia or Montenegro (see sections 6-7 and 87 of the Military Housing Ordinance 1994; sections 7-8 and 74 of the Military Pensioners Ordinance 1994; and sections 6-7 and 85 of the Military Housing Ordinance 1995). 62. Section 39(2) of the Housing Act 1992 provides that the holder of a tenancy right of unlimited duration in respect of a flat may purchase that flat under the same conditions as an occupancy right holder.