FOURTH SECTION
DECISION
Application no. 28416/19
Esad FEJZAGIĆ
against Bosnia and Herzegovina
The European Court of Human Rights, sitting on 14 December 2021 as a Committee composed of:
Tim Eicke, President,
Faris Vehabović,
Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 28416/19) 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 20 May 2019 by a national of Bosnia and Herzegovina, Mr Esad Fejzagić, who was born in 1954 and lives in Konjic (“the applicant”);
the decision to give notice of the complaint under Article 1 of Protocol No. 1 to the Government of Bosnia and Herzegovina (“the Government”), represented by their Acting Agent, Ms M. Mijić, and to declare inadmissible the remainder of the application;
the parties’ observations.
Having deliberated, decides as follows:
SUBJECT-MATTER OF THE CASE
1. The present case concerns a flat in Sarajevo. In 1957 the right to use the flat was allocated to the family Š, because the then owners of the flat (the family H) had another flat meeting their housing needs. Soon after, the family Š was allocated an occupancy right on the flat. An occupancy right, once allocated, entitled the occupancy right holder to permanent, lifelong use of the flat against the payment of a small fee. When occupancy right holders died, their rights transferred, as a matter of right, to their surviving spouses or members of their family households who were also using the flat. Occupancy rights could be cancelled only in court proceedings on limited grounds, the most important of which was failure by the occupancy right holders to use their flats for their own housing needs for a continuous period of at least six months, without justified grounds.
2. The applicant’s father bought the flat from the family H in 1970.
3. The applicant inherited the flat, together with his siblings, from their father in 2008. The applicant’s father and, after his death, the applicant have pursued civil proceedings against the family Š claiming a fair rent or their eviction. Their claim was rejected. The domestic courts relied, among other grounds, on the fact that the flat at issue had already been burdened with an occupancy right when the applicant’s family had bought it and that the legal regime applicable to the flat had not changed. The final domestic decision was rendered by the Constitutional Court on 23 October 2018 and served on the applicant on 13 December 2018.
4. In the meantime, the Flat Lease Act 2015 (Zakon o zakupu stana, published in the Official Gazette of the Sarajevo Canton no. 24/15) entered into force. The former “occupancy right holders” became, by virtue of law, the “protected tenants”. This Act also introduced a temporal limitation to the protected lease scheme: when protected tenants die, their rights transfer, as a matter of right, only to those who lived with them in the flat on 6 December 2000. Other than that, the status of protected tenants under the Flat Lease Act 2015 is almost the same as the status of occupancy right holders under the old legislation.
5. The applicant complained under Article 1 of Protocol No. 1 about the legal regime applicable to his flat and, in particular, because he had not been able to charge a fair rent.
THE COURT’S ASSESSMENT
6. The Court has already found a breach of Article 1 of Protocol No. 1 to the Convention in a number of cases concerning rent-control schemes (see, among other authorities, Hutten-Czapska v. Poland [GC], no. 35014/97, ECHR 2006‑VIII; Bittó and Others v. Slovakia, no. 30255/09, 28 January 2014; Statileo v. Croatia, no. 12027/10, 10 July 2014; Anthony Aquilina v. Malta, no. 3851/12, 11 December 2014; and Kasmi v. Albania, no. 1175/06, 23 June 2020). However, the present case is different from those cases.
7. The applicant’s father acquired the flat in question from a third party in 1970. He was fully aware that the flat was encumbered with restrictions when he bought it. Thus, the applicant cannot hold that circumstance against the authorities (see, mutatis mutandis, Łącz v. Poland (dec.), no. 22665/02, 23 June 2009, and Nobel v. the Netherlands (dec.), no. 27126/11 and 3 other applications, § 39, 2 July 2013). The Court agrees with the Government that this factor was undoubtedly incorporated in the price negotiations when the flat was bought. Furthermore, the applicant did not show that his father had legitimate reason to believe that the restrictions encumbering the flat would be removed after he bought it (contrast Bittó and Others, cited above, § 117, in which the Court held that two applicants could reasonably expect that the rent-control scheme would be dismantled shortly after the purchase of their flats). Lastly, nothing prevents the applicant from selling the flat.
8. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 January 2022.
Ilse Freiwirth Tim Eicke
Deputy Registrar President