Information Note on the Court’s case-law No. 130
May 2010
Đokić v. Bosnia and Herzegovina - 6518/04
Judgment 27.5.2010 [Section IV]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Inability to recover possession of flat on account of service in military forces involved in war hostilities in the country: violation
Facts – During the 1980s, the applicant had worked as a lecturer at a military school based in Sarajevo and was allocated a military flat. In March 1992 he sought to buy the flat. However, even though he paid the purchase price in full, the local authorities refused to register his title to the property because the sale of military flats had temporarily been put on hold. At around the same time the war started in Bosnia and Herzegovina. The applicant’s military school was transferred to Serbia and the applicant left Sarajevo to join the armed forces of the Federal Republic of Yugoslavia. After the war, the applicant tried to recover possession of the flat, but his request was refused since he was unable to prove that he had been a refugee or a displaced person as required under the relevant legislation. Even after a subsequent change in the law, a restriction remained in respect of persons seeking to recover possession of military flats who had served in the army of one of the successor states to the former Yugoslavia. The applicant’s subsequent appeal to the Human Rights Commission was also rejected since the Commission held that his service in the forces of the Federal Republic of Yugoslavia had demonstrated his disloyalty to Bosnia and Herzegovina. Given the serious shortage in housing and the fact that the applicant was entitled to compensation, the interference with his property rights had been justified.
Law – Article 1 of Protocol No. 1: The Court was aware of the strong local opposition to those who had served in the military forces of the Federal Republic of Yugoslavia returning to their pre-war homes. This was due to their participation in military operations in Bosnia and Herzegovina, and in particular Sarajevo, which had been subjected to blockages, daily shelling and sniping throughout the war. However, there was no indication that the applicant had in any way participated in any military operations or war crimes in Bosnia and Herzegovina. He had been treated differently merely because of his service in those forces, which was indicative of his ethnic origin. As regards the Government’s argument relating to the shortage of housing and the need to accommodate destitute members of the local armed forces, the statistical data provided did not show that the free housing space had in fact been used to accommodate those deserving of protection. The figures simply confirmed that most military flats were allocated to war veterans, invalids and families of killed members of the local army, without indicating their housing situation or their income. Finally, neither the amount of compensation the applicant would be entitled to receive nor the refund calculated on the amount paid for the Sarajevo flat was reasonably related to the flat’s market value. In such circumstances, the Court concluded that a fair balance between the applicant’s property rights and the requirements of the public interest had not been struck.
Conclusion: violation (unanimously).
Article 41: EUR 60,000 in respect of pecuniary damage and EUR 5,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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