FOURTH SECTION
DECISION
Application no. 32148/11
Jasna RALJEVIĆ
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 27 January 2015 as a Chamber composed of:
Guido Raimondi, President,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Zdravka Kalaydjieva,
Paul Mahoney,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 20 April 2011,
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, Ms Jasna Raljević, is a citizen of Bosnia and Herzegovina, who was born in 1943 and lives in Mostar. She was represented before the Court by Ms M. Škoro, a lawyer practising in Mostar.
2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Introduction
4. In 1949 the applicant and her parents moved in a flat in Mostar owned by E.R.’s father. In 1963 the applicant’s parents were given the occupancy right[1] on that flat.
5. In 1998, following her mother’s death, the occupancy right was transferred to the applicant in accordance with the Housing Act 1974 (see paragraph 24 below).
2. Domestic proceedings concerning E.R.’s request for eviction
6. On 12 November 2003 E.R., who inherited the flat after his father’s death, initiated proceedings before the Ministry of Spatial Planning and Construction of the Herzegovina-Neretva Canton (Ministarstvo građenja i prostornog uređenja Hercegovačko-Neretvanskog Kantona; “the Cantonal Ministry”) for the applicant’s eviction and offered her a replacement flat in the same building (“the replacement flat”). The claim was based on section 56 of the Housing Act 1974 which authorised owners of privately owned flats allocated to occupancy right holders to seek their eviction under the condition that they provide them with a suitable replacement flat (see paragraph 24 below).
7. On 4 April 2005 the Cantonal Ministry ordered the applicant to vacate the flat in question. It further ordered E.R. to let her into the replacement flat.
8. On 9 September 2005 the Federal Ministry of Spatial Planning and Environment (Federalno ministarstvo prostornog uređenja i okoliša; “the Federal Ministry”), quashed the decision of 4 April 2005 and remitted the case for a re-hearing.
9. On 4 January 2006 the Cantonal Ministry rejected E.R.’s request. It held that in case of eviction, the applicant would lose her occupancy right on the flat in question, whereas she would not be able to acquire the same right on the replacement flat since from 6 December 2000 it was no longer possible to acquire occupancy rights (see paragraph 25 below).
10. On 19 September 2006 and 17 December 2007, respectively, the Federal Ministry and the Mostar Cantonal Court (“the Cantonal Court”) upheld the decision of 4 January 2006.
11. On 27 January 2010 the Supreme Court of the Federation of Bosnia and Herzegovina (“the Supreme Court”) rejected E.R.’s request for extraordinary judicial review.
12. On 25 February 2008 E.R. lodged a constitutional appeal.
13. The applicant had been invited to submit her third-party comments in the proceedings before the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). However, that court explicitly stated that its examination was limited to E.R.’s appeal.
14. On 25 September 2010 the Constitutional Court held that E.R.’s request for eviction was based on relevant domestic law (section 56 of the Housing Act 1974; see paragraph 24 below) and that in rejecting it the administrative bodies and the Cantonal Court violated his right to the peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the Convention. It quashed the Cantonal Court’s judgment of 17 December 2007 (see paragraph 10 above) and remitted the case for a re-hearing (having been given upon an extraordinary remedy, the Supreme Court’s judgment of 27 January 2010 was not examined in these proceedings).
15. On 20 December 2010, in the re-hearing proceedings, the Cantonal Court quashed the administrative decisions of 4 January 2006 and 19 September 2006 (see paragraphs 9 and 10 above) in line with the Constitutional Court’s decision.
16. On 16 May 2011 the Cantonal Ministry accepted E.R.’s request and ordered the applicant to vacate the flat in question within fifteen days from the date of notification of that decision. Furthermore, it ordered E.R. to enable the applicant to use the replacement flat.
17. On 11 July 2011 and 9 March 2012, respectively, the Federal Ministry and the Cantonal Court upheld the decision of 16 May 2011.
18. On 14 March 2013 the Supreme Court rejected the applicant’s request for extraordinary judicial review of the Cantonal Court’s judgment of 9 March 2012.
3. Eviction proceedings
19. On 11 September 2012 an eviction order was issued. The eviction was scheduled for 17 October 2012 at 12 p.m. and was to be carried out with police assistance in view of the fact that the applicant had not left the flat on her own motion within the prescribed time-limit.
20. On 21 November 2012 and 4 October 2013 the eviction order was upheld by the Federal Ministry and the Cantonal Court, respectively.
21. After one rescheduling at the applicant’s request, the eviction took place on 19 November 2012 when the Cantonal Ministry’s commission, in the presence of police officers, E.R.’s representative, the applicant’s representative and the representative of the competent social work centre, made a list of the applicant’s personal belongings, transferred them to the replacement flat and sealed it. The keys to the flat were given to E.R.
22. On 22 November 2012, 17 January, 11 February, 28 February and 1 April 2013 the Cantonal Ministry invited the applicant’s representative to collect the keys to the replacement flat. It would appear that until now she has failed to do so.
23. The applicant is currently staying with her relatives in Sarajevo.
B. Relevant domestic law
24. In the former Socialist Federal Republic of Yugoslavia nearly all flats were under the regime of “social ownership”. They were generally built by socially-owned enterprises or other public bodies for allocation to their employees, who became “occupancy right holders”. The matter has been regulated by the Housing Act 1974 (Zakon o stambenim odnosima, Official Gazette of the Socialist Republic of Bosnia and Herzegovina nos. 13/74, 23/76, 34/83, 14/84, 12/87 and 36/89; Official Gazette of the Republic of Bosnia and Herzegovina no. 2/93, Official Gazette of the Federation of Bosnia and Herzegovina nos. 11/98, 38/98, 12/99 and 19/99; Official Gazette of the Republika Srpska nos. 19/93, 22/93, 12/99 and 31/99) which is still in force in Bosnia and Herzegovina. An occupancy right, once allocated, entitled the occupancy right holder to permanent, lifelong use of the flat against the payment of a nominal fee. When occupancy right holders died, their rights were transferred, as a matter of right, to their surviving spouses or registered members of their family households who were also using the flat (sections 19 and 21 of the Housing Act 1974).
Until the entry into force of the Housing Act 1974, occupancy right could also be awarded in respect of privately owned flats. Those flats were also allocated by public bodies. With the Housing Act 1974 it was no longer possible to award occupancy right in respect of flats in private ownership. However, the pre-existing occupancy rights in respect of such flats were preserved (section 2(2) of this Act). Section 56 of this Act, on the other hand, authorised owners of such flats to seek eviction of the occupancy right holders under the condition that they provide them with another suitable flat.
25. On 6 December 2000 all occupancy rights ceased to exist (section 46(1) of the Privatisation of Flats Act 1997; Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette of the Federation of Bosnia and Herzegovina 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). The occupancy right holders on socially-owned flats were entitled to purchase their flats under that Act. If they did not purchase the flats, they became tenants. However, the occupancy right holders on privately owned flats could not purchase their flats (section 47(1) of this Act). It would appear that their situation continued to be regulated by the relevant provisions of the Housing Act 1974 and that they became “protected tenants” (zaštićeni stanari).
26. According to Rule 23 (2) and (3) of the Rules of the Constitutional Court, the court shall transmit the appeal to the other party to the impugned proceedings for comments. Failure to submit such comments shall not affect the course of the proceedings before the Constitutional Court.
COMPLAINT
27. The applicant complained under Article 8 of the Convention that by ruling as they did the domestic authorities, in particular, the Constitutional Court, had violated her right to respect for her home. She further submitted that the question of suitability of the replacement flat had never been addressed in the domestic proceeedings.
THE LAW
28. The Government submitted that the applicant had not exhausted available domestic remedies, as required by Article 35 § 1 of the Convention, as she had failed to lodge a constitutional appeal against the Cantonal Court’s judgment of 9 March 2012 (see paragraph 17 above).
29. The applicant argued that her right to respect for her home had been violated by the Constitutional Court’s decision of 25 September 2010 and that there had been no other domestic remedies left to exhaust.
30. The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, inter alia, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996-IV; Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II; and Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 et al., ECHR 2010).
31. As to legal systems which provide constitutional protection for fundamental rights, such as that of Bosnia and Herzegovina, the Court reiterates that it is incumbent on the aggrieved individual to test the extent of that protection (see Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 16 May 2006).
32. Turning to the present case, the Court notes that on 25 September 2010 the Constitutional Court examined E.R.’s appeal, held that there had been a violation of his right to the peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the Convention and ordered a re-hearing concerning his request for the applicantʼs eviction. The Court observes, in particular, that, althought the applicant had been invited to submit her third-party comments, the Constitutional Court explicitly stated that the scope of its examination in that case was limited to the complaints alleged in E.R.’s appeal (see paragraph 13 above).
33. However, the applicant had a possibility to challenge the outcome of the re-hearing proceedings, which ended with the judgment of the Cantonal Court on 9 March 2012 (see paragraph 17 above), before the Constitutional Court thereby giving it a chance to examine her Article 8 complaints before brining them to this Court. The Court notes that she used an extraordinary domestic remedy against the judgment of 9 March 2012 before the Supreme Court but failed to lodge a constitutional appeal.
34. The applicant has neither used that remedy nor shown that it was for any reason inadequate or ineffective in the particular circumstances of her case. The Court sees no special circumstances absolving her from the obligation to use it (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV, § 67).
35. In view of the above, the Court considers that the Governmentʼs preliminary objection is well-founded and that the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 February 2015.
Françoise Elens-PassosGuido Raimondi
RegistrarPresident
[1] The domestic Human Rights Chamber and Constitutional Court have consistently used the term “occupancy right” for this type of tenancy. It will therefore be used in this judgment instead of the term “specially protected tenancy” used by the Court in Blečić v. Croatia [GC], no. 59532/00, ECHR 2006‑III, and other cases against Croatia.
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