FOURTH SECTION
DECISION
Application no. 47212/08
Ferenc BOŠNJAK
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 6 June 2017 as a Chamber composed of:
Ganna Yudkivska, President,
Vincent A. De Gaetano,
Faris Vehabović,
Iulia Motoc,
Carlo Ranzoni,
Georges Ravarani,
Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,
Having regard to the above application lodged on 28 August 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
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.
A. Relevant background
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).
B. The circumstances of the case
6. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Introduction
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[1] 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.
2. Restitution proceedings
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.
3. Proceedings before the Human Rights Chamber and the Human Rights Commission
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.
C. Relevant domestic law and practice
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.
COMPLAINTS
22. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained that he had been unable to regain possession of the flat he had bought before the war. He further alleged that the impugned situation amounted to an unnecessary interference with the right to respect for his home enshrined in Article 8 of the Convention. Lastly, the applicant alleged a violation of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1.
THE LAW
23. Article 1 of Protocol No. 1 provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Article 8, in so far as relevant, provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence ... “
Article 14 provides as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. The parties’ arguments
24. The Government argued that the applicant had submitted his application outside the six-month time-limit laid down in Article 35 § 1 of the Convention. The final decision concerning his complaints was given by the Human Rights Commission on 6 July 2005. Moreover, the applicant had received compensation for his flat on 19 April 2007. The Government considered that by accepting the payment, he had agreed to the amount of compensation paid. In any event, if he had not been satisfied with the amount, he should have lodged an application with the Court within six months of the date of payment.
25. The Government also referred to the agreement concluded between the Government of Bosnia and Herzegovina and the JNA in May 1992, concerning the withdrawal of the JNA from Sarajevo and some other cities in Bosnia and Herzegovina. Under the terms of that agreement, those JNA members who had purchased military flats and who wished to leave Bosnia and Herzegovina were entitled to a refund of the purchase price. Lastly, the Government submitted that this case should be distinguished from Đokić because the present applicant’s complaints had been finally resolved at the domestic level.
26. The applicant submitted that he had agreed to compensation in lieu of restitution. However, he considered that the compensation he had received was inadequate.
B. The Court’s assessment
27. The Court considers that it should first examine whether the applicant has complied with the six-month rule contained in Article 35 § 1 of the Convention.
28. The Court reiterates that the purpose of the six-month rule is to promote legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time (see, among other authorities, Sabri Güneş v. Turkey [GC], no. 27396/06, § 39, 29 June 2012).
29. The Court further reiterates that, as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Blokhin v. Russia [GC], no. 47152/06, § 106, ECHR 2016).
30. Turning to the present case, the Court notes at the outset that the final decision concerning the applicant’s complaints was given by the Human Rights Commission on 6 July 2005 and the application was lodged with the Court on 28 August 2008. Furthermore, on 19 April 2007 the applicant received compensation for his military flat as ordered by the Human Rights Commission. In that connection, the Court notes that the applicant complained that the compensation he had received was not adequate for the pecuniary loss he had sustained on account of his inability to regain possession of his flat. However, the applicant failed to raise this complaint within six months of the date of payment. Instead, he waited for more than a year and four months before bringing his case before the Court.
31. In these circumstances, the Court finds that the application has been lodged out of time and that it is inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 29 June 2017.
Marialena TsirliGanna Yudkivska
RegistrarPresident
[1] The VJ forces, the armed forces of the Federal Republic of Yugoslavia, were established on 20 May 1992. In 2006 the Federal Republic of Yugoslavia was succeeded by Serbia.
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