MANDIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
Inadmissible
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
1. Ms Mara Mandić and Mr Krsto Bošković are Serbian nationals who were born in 1948 and 1956 respectively. Mr Strahinja Starčević is a citizen of Bosnia and Herzegovina who was born in 1937. Mr Milija Vlahović is a citzen of Bosnia and Herzegovina and a national of Serbia who was born in 1937. All the applicants live in Serbia. 2. Mr Strahinja Starčević was represented before the Court by Mr D. Kalaba, a lawyer practising in Sarajevo. 3. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić. 4. 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. 5. 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 Sarajevo. 6. 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. 7. 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 1981 and 1989 the applicants, or their spouses, were allocated military flats in Sarajevo which they later purchased under the terms of the Military Flats Act 1990. 8. 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). 9. 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 Sarajevo. They were thereafter allocated tenancy rights of unlimited duration on military flats in Serbia, which some of them even purchased later. 10. 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. 11. 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. 12. The facts of the case, as submitted by the parties, may be summarised as follows. 13. In 1982 the applicant’s husband, a JNA officer, was allocated a military flat in Sarajevo. 14. On 11 February 1992 the applicant’s husband bought that flat under the terms of the Military Flats Act 1990 and paid the full price in the amount of 190,385 Yugoslav dinars. 15. 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. 16. On 15 September 1998 the applicant’s husband applied to the competent domestic authorities to have the flat in Sarajevo restored to him. After her husband’s death, the applicant continued those proceedings (in accordance with the Housing Act 1984, which is still in force, spouses share occupancy rights). 17. On 26 September 2000 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat to H.N., a member of the ARBH forces. 18. Following two remittals on procedural grounds, on 27 October 2003 the application for restitution was rejected pursuant to section 3a of the Restitution of Flats Act 1998. 19. On 12 July 2004 the competent Ministry of the Sarajevo Canton upheld the first-instance decision of 27 October 2003. On 28 September 2006, following an application for judicial review, the Sarajevo Cantonal Court (“the Cantonal Court”) upheld the second-instance decision. 20. On 1 December 2010 the applicant was allocated tenancy right of unlimited duration on a military flat in Belgrade. 21. It would appear that the applicant has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 54 below). 22. In 1988 the applicant, a JNA medical officer, was allocated a military flat in Sarajevo. 23. On 23 December 1991 the applicant bought that flat under the terms of the Military Flats Act 1990 and paid the full purchase price in the amount of 701,038 Yugoslav dinars. 24. 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 2002. 25. On 2 January 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat to N.A., a member of the ARBH forces. 26. On 11 December 1997 the applicant was allocated tenancy right of unlimited duration on a military flat in Belgrade. On 2 September 1998 he purchased that flat. 27. On 19 January 1998 the applicant applied for the restitution of his flat in Sarajevo. 28. Following one remittal on procedural grounds, on 11 February 2004 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. 29. On 23 July 2004 the competent Ministry of the Sarajevo Canton upheld the first-instance decision of 11 February 2004. 30. On 23 February 2007 the Cantonal Court, following an application for judicial review, upheld the second-instance decision of 23 July 2004. On 8 September 2009 the Supreme Court rejected the applicant’s request for extraordinary review of that judgment (zahtjev za vanredno preispitivanje sudske odluke). 31. On 29 December 2009 the applicant lodged a constitutional appeal against the Supreme Court’s decision. 32. On 10 November 2010 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) rejected his appeal as incompatible ratione materiae since it held that the Supreme Court’s decision had not involved an examination of the substance of the applicant’s claims but only of whether the procedural requirements for an extraordinary review of the Cantonal Court’s judgment had been met. 33. On 2 September 2003 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 21 December 2005 the restitution commission rejected the applicant’s request for reconsideration of his claim. 34. On 9 February 2010 the Court of Bosnia and Herzegovina, following an application for judicial review, quashed the decisions of 2 September 2003 and 21 December 2005 and remitted the case for reconsideration. In the meantime, however, the restitution commission had ceased to exist and its cases were taken over by the competent municipal housing authority. It would appear, however, that no decision was taken as regards the applicant’s request following remittal. 35. It would appear that the applicant has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 54 below). 36. In 1989 the applicant, a JNA officer, was allocated a military flat in Sarajevo. 37. On 11 February 1992 he bought that flat under the terms of the Military Flats Act 1990 and paid the full price in the amount of 424,363.5 Yugoslav dinars. 38. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant continued his military career in the VJ forces. 39. On 10 February 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat to H.H., a member of the ARBH forces. 40. On 27 March 1997 the applicant was allocated tenancy right of unlimited duration on a military flat in Novi Sad, Serbia. On 22 May 1997 he purchased that flat. 41. On an unknown date he applied to the competent domestic authorities to have his flat in Sarajevo restored to him. On 3 November 2000 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. 42. On 30 May 2001 the Ministry of the Sarajevo Canton upheld the first-instance decision of 3 November 2000. It would appear that the applicant did not appeal against that decision. 43. On 16 April 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. 44. It would appear that the applicant has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 54 below). 45. In 1981 the applicant, a JNA officer, was allocated a military flat in Sarajevo. 46. On 14 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 355,965 Yugoslav dinars. 47. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, he continued his military career in the VJ forces. His military service was terminated in September 1992. 48. On 9 April 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat to S.Č., a member of the ARBH forces. 49. On 15 April 1998 the applicant applied to the competent domestic authorities to have his flat in Sarajevo restored to him. Following two remittals on procedural grounds, on 8 October 2003 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. 50. On 28 April 2004 the Ministry of the Sarajevo Canton upheld the first-instance decision. On 26 January 2007, following an application for judicial review, the Cantonal Court upheld the second-instance decision. 51. On 14 October 2009 the Constitutional Court rejected the applicant’s constitutional appeal and upheld the impugned decisions. 52. On an unknown date the applicant was allocated tenancy right of unlimited duration on a military flat in Serbia. 53. It would appear that he has not applied for compensation under section 39e of the Privatisation of Flats Act 1997 (see paragraph 54 below). 54. 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). 55. 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). 56. 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). 57. 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.