CASE OF OMERAGIĆ v. BOSNIA AND HERZEGOVINA

FOURTH SECTION

CASE OF OMERAGIĆ v. BOSNIA AND HERZEGOVINA

(Application no. 44804/22)

JUDGMENT
 

STRASBOURG

4 November 2025

This judgment is final but it may be subject to editorial revision.

In the case of Omeragić v. Bosnia and Herzegovina,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

 Lorraine Schembri Orland, President,
 Faris Vehabović,
 Sebastian Răduleţu, judges,
and Giorgi Badashvili, Acting Deputy Section Registrar,

Having regard to:

the application (no. 44804/22) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 14 September 2022 by a national of Bosnia and Herzegovina, Ms Vesna Omeragić (“the applicant”), who was born in 1955, lives in Sarajevo and was represented by Vaša Prava, a local non-governmental organisation;

the decision to give notice of the complaints concerning the non-enforcement of a final decision recognising the applicant’s property title to the Government of Bosnia and Herzegovina (“the Government”), represented by their Acting Agent, Mr B. Bajić, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 7 October 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The present case concerns the non-enforcement of a final and enforceable decision in the applicant’s favour and mainly raises an issue under Article 1 of Protocol No. 1 to the Convention.

2.  In March 2004, the applicant submitted a request to the Brod Municipality for the allocation of a suitable replacement flat, in lieu of the one over which she held occupancy rights and which had been destroyed in the 1992-95 war in the respondent State. The surface area of the applicant’s flat was 53 square meters.

3.  On 18 November 2011 the Brod Municipality determined that the applicant was entitled, under the Privatisation of Flats Act 2000, to be allocated a suitable replacement flat. That decision further referred to the Municipality’s Decision on Compensation of 2006 which stipulated that, if no suitable flat was available, appropriate monetary compensation should be provided. The amount of compensation was to be calculated on the basis of the average market value of real property in Brod, taking into account location, surface area and depreciation rate.

4.  The decision of 18 November 2011 became final and enforceable on 19 December 2011. However, the applicant’s enforcement request was rejected due to the lack of available housing units. On 26 October 2016 and 8 June 2022 the Constitutional Court dismissed her subsequent constitutional appeals, challenging the prolonged non-enforcement, as manifestly ill-founded. The court held that, although the period of non-enforcement had lasted somewhat longer than usual, it was justified for objective reasons – a shortage of funds and housing units.

5.  The right to a replacement flat for occupancy right holders, whose flats had been destroyed during the war, was initially envisaged in section 56 of the Privatisation of Flats Act 2000. Although that Act was replaced in 2011 by a new Privatisation of Flats Act, the obligation originally set out in section 56 remained unchanged. However, the statutory deadline for compliance with this obligation has been extended several times. Most recently, in 2020, it was extended until 30 June 2025.

6.  In 2018, the Regulation on Allocation of Flats was adopted. It sets out the procedure for allocating municipal flats to eligible tenants. Section 3 of the Regulation reaffirms the right established in section 56 of the Privatisation of Flats Act 2011 (see paragraph 5 above) and states that flats are to be allocated in chronological order, based on when allocation requests were submitted to the relevant municipality.

THE COURT’S ASSESSMENT

7.  Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained about the non-enforcement of the final administrative decision of 18 November 2011, which recognised her property title.

8.  The Court notes that the alleged violation in the present case constitutes a continuing situation. Moreover, prior to bringing her case before this Court, the applicant initiated constitutional proceedings, which is, in principle, an effective domestic remedy for raising a complaint about the enforcement proceedings (see Đukić v. Bosnia and Herzegovina, no. 4543/09, § 29, 19 June 2012, and Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 16 May 2006). Since the application was introduced within four months of the Constitutional Court’s second decision (see paragraph 4 above), which had examined the merits of the applicant’s constitutional appeal,  the Court finds that it cannot be considered to have been lodged out of time within the meaning of Article 35 § 1 of the Convention. The Government’s objection to that effect must therefore be dismissed.

9.  The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

10.  The Court observes that the applicant’s right to a suitable replacement flat or adequate monetary compensation was clearly recognised by the final and enforceable decision of 18 November 2011, issued by the municipal authority pursuant to the applicable property legislation (see paragraphs 3 and 5-6 above). This decision has never been set aside or amended and remains valid to this day. Accordingly, the Court considers that the applicant’s claim is sufficiently established in domestic law to constitute an enforceable “asset” within the meaning of Article 1 of Protocol No. 1 (compare, among many others, Ramadhi and Others v. Albania, no. 38222/02, § 77, 13 November 2007; Krstić v. Serbia, no. 45394/06, §§ 76 and 80-83, 10 December 2013; Moskal v. Poland, no. 10373/05, § 45, 15 September 2009; Viaşu v. Romania, no. 75951/01, § 59, 9 December 2008; and Vrbica v. Croatia, no. 32540/05, § 40, 1 April 2010), an aspect which was not even contested by the respondent Government.

11.  The Court recalls that the inability to enforce a final decision recognising title to property is to be examined under the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see, among other authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002‑III, and Jeličić v. Bosnia and Herzegovina, no. 41183/02, § 48, ECHR 2006-XII, with further references therein). It must therefore establish whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. In the circumstances of the instant case, the Court is thus called upon to determine whether the length of time during which the domestic authorities failed to enforce the decision of 18 November 2011 upset that balance and imposed an excessive burden on the applicant (compare, for instance, Ramadhi and Others, cited above, § 78, and Krstić, cited above, § 77).

12.  The Government argued that the applicant should have submitted a new request to the Brod Municipality under the Regulation on Allocation of Flats 2018 (see paragraph 6 above). The Court notes that a final and enforceable decision has already acknowledged the applicant’s entitlement to the allocation of a suitable replacement flat. Requiring her to initiate fresh proceedings – regardless of their potential effectiveness – would impose an excessive burden on her (see mutatis mutandis, Đukić, cited above, § 33). The Court reiterates that, where a final decision has been rendered in favour of an individual against the State, as in the present case, that individual should not, in principle, be required to initiate separate proceedings to secure its enforcement (compare, amongst many others, Krstić, cited above, § 84).

13.  More than thirteen years have passed since the final decision in the applicant’s favour, yet she has neither been allocated a replacement flat nor awarded the monetary compensation envisaged by the Decision on Compensation of 2006 (see paragraph 3 above). The extended deadline for the respondent State to comply with the decision of 18 November 2011 – introduced by the 2020 amendments to the Privatisation of Flats Act 2011 – expired on 30 June 2025 (see paragraph 5 above). Other than citing a lack of funds and available housing units, the Government have not shown that any concrete steps were taken to enforce the final decision within the prescribed period. However, the State cannot rely on a lack of funds or other resources to justify non-compliance with a final and enforceable decision; under the Convention it remains obliged to ensure compliance within a reasonable time (see, for example, Manushaqe Puto and Others v. Albania, nos. 604/07 and 3 others, § 96, 31 July 2012). Comparable enforcement delays have previously been found to amount to unjustified interference with applicants’ possessions (see Jeličić, cited above, § 49; Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07 et al., § 15, 10 November 2009; and Lyubomir Popov v. Bulgaria, no. 69855/01, § 122, 7 January 2010). The Court sees no reason to reach a different conclusion in the present case.

14.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

15.  The applicant also complained under Article 6 § 1 of the Convention about the prolonged non-enforcement of the final decision of 18 November 2011.

16.  Having regard to its findings above in respect of Article 1 of Protocol No. 1, the Court considers that it has examined the main legal question raised in the present case, and that there is no need to give a separate ruling on the admissibility or the merits of the applicant’s complaint under Article 6 § 1 of the Convention (see, among many other authorities, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014; Atima Limited v. Ukraine, no. 56714/11, § 48, 20 May 2021; and AsDAC v. the Republic of Moldova, no. 47384/07, §§ 54-55, 8 December 2020; see also, in the context of non-enforcement and mutatis mutandis, Krstić, cited above, § 88, and Lyubomir Popov, cited above, § 134).

17.  The applicant sought enforcement of the decision of 18 November 2011. In the alternative, she claimed 77,000 euros (EUR) for pecuniary damage and EUR 5,000 for non-pecuniary damage.

18.  The Government contested these claims.

19.  Having regard to the circumstances of the case – particularly the rejection of the applicant’s enforcement request due to the unavailability of suitable housing units – and the relevant economic data, the Court considers it appropriate to award the applicant EUR 21,000 in respect of pecuniary damage, in lieu of the allocation of a replacement flat, and EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 21,000 (twenty-one thousand euros) in respect of pecuniary damage;

(ii)  EUR 3,000 (three thousand euros) in respect of non-pecuniary damage; and

(iii)  any tax that may be chargeable on the above amounts;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 4 November 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Giorgi Badashvili Lorraine Schembri Orland
 Acting Deputy Registrar President