BOŠNJAK v. BOSNIA AND HERZEGOVINA
Inadmissible
Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
1. The applicant, Mr Ferenc Bošnjak, is a dual Serbian and Australian national who was born in 1952 and lives in Melbourne, Australia. He was represented before the Court by Mr J. Remenović. 2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent at the time, 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 applicant was an officer of the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia (“SFRY”). The present case concerns his attempt to regain possession of a flat he had bought in Sarajevo before the 1992-95 war. 5. The detailed background concerning socially owned flats, military flats and the involvement of foreign armed forces in the 1992-95 war in Bosnia and 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 et al., §§ 5-8, 3 May 2012). 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. In May 1983 the applicant was granted the right to occupy a military flat in Sarajevo. 8. On 10 February 1992 he bought that flat under the terms of the Military Flats Act 1990 and paid the full purchase price in the amount of 211,415 Yugoslav dinars (approximately 2,510 German marks at the time). 9. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant continued his military career in the VJ forces and left Sarajevo. His military service was terminated in 1997. 10. On 22 August 1996 the relevant housing authority of the VJ forces rejected a request submitted by the applicant to be granted a tenancy right in respect of a military flat in Serbia. 11. On 10 March 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat in question to M.A., a member of the Army of the Republic of Bosnia and Herzegovina. 12. In 1998 the applicant applied to the competent administrative authority in the Sarajevo Canton for the restitution of his flat. On 11 March 2003 his application was rejected under section 3a of the Restitution of Flats Act 1998. On 20 November 2003 the competent Ministry of the Sarajevo Canton upheld that decision. 13. On 28 January 2003 the restitution commission set up by Annex 7 to the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (“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. 14. On an unspecified date the applicant lodged an application with the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the Dayton Peace Agreement). He relied on Articles 6, 8 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention. 15. On 6 July 2005 the Human Rights Commission (which had succeeded the Human Rights Chamber in 2004) found a violation of Article 6 of the Convention on account of the length of the restitution proceedings and awarded the applicant 1,000 convertible marks (BAM; approximately 500 euros (EUR)) for non-pecuniary damage in this connection. As regards the complaint under Article 1 of Protocol No. 1, the Human Rights Commission held that the situation complained of, that is, the applicant’s inability to regain possession of the flat and to register his title to it, undoubtedly amounted to a continuing interference with the peaceful enjoyment of his “possessions”. Assessing the proportionality of the interference, the Human Rights Commission held that the applicant’s continued service in the VJ forces after the 1992-95 war demonstrated his disloyalty to Bosnia and Herzegovina. Taking into consideration also the serious shortage of housing units and the compensation to which the applicant was entitled, the Human Rights Commission concluded that the interference was justified. It therefore found no violation of Article 1 of Protocol No. 1 to the Convention and considered it to be unnecessary to examine the discrimination and Article 8 complaints. However, it ordered the government of the Federation of Bosnia and Herzegovina to secure the applicant’s right to compensation for his flat under section 39e of the Privatisation of Flats Act 1997 without further delay and at the latest within three months of the delivery of that decision. 16. On 19 April 2007 the applicant received BAM 21,868.51 (approximately EUR 11,214.62) in compensation for his flat, as ordered by the Human Rights Commission. 17. On 22 December 1995 all purchase contracts concluded under the Military Flats Act 1990 were declared void under legislation transferring the resources of the former SFRY to the Republic of Bosnia and Herzegovina (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 (“OG FBH”) 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, OG FBH 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. 18. Nevertheless, two categories of buyers are not entitled to repossess their flats and to register their title to them (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. However, they are entitled to compensation under section 39e of the Privatisation of Flats Act 1997. The compensation was initially calculated on the basis of approximately EUR 300 per square metre, adjusted in line with the age of the flat, with depreciation set at 1% of its value per year. On 11 July 2006 section 39e of the Privatisation of Flats Act 1997 was amended so that those who could not repossess their flats were entitled only to a refund of the amount paid for the flats in 1991/92, plus interest at the rate applicable to overnight deposits. 19. On 30 March 2012, following the Court’s judgment in the case of Đokić v. Bosnia and Herzegovina, cited above, the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) declared that section 39e as amended in July 2006 was unconstitutional and ordered the Federation of Bosnia and Herzegovina to amend it (decision no. U 15/11). The Constitutional Court stated, in particular: “The Constitutional Court cannot determine what the compensation [for military flats] should be. That question is within the jurisdiction of the Parliament of the Federation of Bosnia and Herzegovina, which in its role of a legislative body will determine the policy concerning this matter. However, the Constitutional Court believes that in determining this matter the legislator should take into account the circumstances in which the impugned flats were purchased, the economic situation in Bosnia and Herzegovina and the fact that Article 1 of Protocol No. 1 of the European Convention does not guarantee a right to full compensation in all circumstances.” 20. In 2011 and 2013 the Federation of Bosnia and Herzegovina adopted action plans in response to the Court’s judgments in the cases of Đokić and Mago and Others (both cited above) with a view to identifying similar cases and introducing an adequate compensation scheme. It was established that around 800 individuals were in the same situation as the applicants in those cases (out of which 224 had purchased their flats). It was further estimated that around EUR 6 million should be secured to pay the compensation for their pre-war homes. 21. In March 2016 the Government of the Federation of Bosnia and Herzegovina prepared draft amendments to section 39e of the Privatisation of Flats Act 1997. The amendments provide that the amount actually paid for the flats in 1991/92, plus interest at the rate applicable to overnight deposits, will be refunded to those who acquired a tenancy right or another equivalent right to a military flat in one of the successor States of the SFRY. Those who did not acquire such rights, irrespective of whether they purchased or had an occupancy right in respect of the flats, will be entitled to compensation calculated at a rate of approximately EUR 300 per square metre, adjusted in line with the age of the flat, with depreciation set at 1% of its value per year. As explained above, the same method was used before the July 2006 legislative amendments (see paragraph 18 above). The eligible beneficiaries would be entitled to apply for compensation within 180 days of the adoption of the amendments. The compensation would be payable in two equal annual instalments.