SECOND SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 45658/99
by Dimitar VESELINSKI
against the Former Yugoslav Republic of Macedonia
The European Court of Human Rights (Second Section), sitting on 11 October 2001 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrP. Lorenzen,
MrsM. Tsatsa-Nikolovska,
MrE. Levits,
MrA. Kovler,
MrV. Zagrebelsky, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 29 June 1998 and registered on 29 January 1999,
Having regard to the partial decision of 30 March 2000,
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
The applicant is a national of the Former Yugoslav Republic of Macedonia, born in 1924 and living in Skopje.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Particular circumstances of the case
1. Background
In former Yugoslavia, the citizens used to pay a housing tax. With these accumulated funds the State constructed “socially owned” apartments which were then rented to individuals at legally fixed rates.
The Former Yugoslav Army was the single army on the territory of the Former Yugoslavia governed by laws which were applicable throughout former Yugoslavia. The army servicemen had to pay higher monthly contributions from their salary to the Yugoslav Army for the construction of army apartments in which they were entitled to live as tenants.
The applicant, as an army serviceman, used to live until 1982 as a tenant in an apartment owned by the former Yugoslav army in Skopje. Once he started working for the Macedonian Secretary of Defence, he sought to obtain a bigger apartment. On 3 June 1982 the Governing Council of the Socialistic Republic of Macedonia (Извршен совет) issued a decision by which it rented to the applicant a bigger apartment in its possession. The applicant gave up his previously rented apartment which remained the property of the former Yugoslav Army. In 1985 the applicant retired and continued living in that apartment.
On 29 December 1990 the Federal Assembly of Former Yugoslavia enacted a Law on Housing of the Army Servicemen (Закон за станбено обезбедување во ЈНА) (“the Z.S.О.J.N.A.”), according to which army servicemen, current and retired, could purchase apartments in which they lived with a price reduction for the amount of the paid contributions for the construction of army apartments and for the development of the construction land. Section 26 provides that the same purchase conditions apply to apartments which do not belong to the army, as in the applicant’s case. According to regulations issued by the Yugoslav Federal Ministry, the price difference was to be paid by the Federal Army (see the relevant domestic law).
Following the breakup of Yugoslavia and a referendum held on 8 September 1991, the Former Yugoslav Republic of Macedonia declared independence and on 17 November 1991 it adopted its Constitution (Устав) under which the laws from former Yugoslavia remained in force, except for the laws regulating the organisation and competence of the former Yugoslav federal organs. On 21 February 1992 the Macedonian President and the General of the Yugoslav Army concluded an agreement for the withdrawal of the Yugoslav army from the Macedonian territory.
On 28 February 1992 the Macedonian Government concluded an Agreement for Settlement of Claims and Obligations in Respect of Real Property (Спогодба за правата и обврските во врска со примопредажбата на недвижностите на територија на Република Македонија) (“the S.P.O.V.P.N.T.R.M.”) with the Yugoslav Ministry of Defence. According to this agreement the Macedonian Government took over all the obligations of the Yugoslav Army in respect of army apartments, including the obligation to sell these apartments with a price reduction. On 15 April 1992 the Macedonian Government enacted a Regulation on the Terms of Purchase of the State owned Apartments and Premises Obtained from the Yugoslav Army (Уредба за начинот и условите за продажба на становите и деловниот фонд на ЈНА што се во државна сопственост на Република Македонија) (“the U.P.D.S.F.N.J.A.”). The Regulation only governs the terms of purchase by the servicemen of the apartments which had been previously owned by the Former Yugoslav Army. It does not make any reference to purchase by the former servicemen of the apartments not owned by the army.
From the Ministry of Defence’s decision of 12 June 1992 it appears that the Ministry exchanged the title of its apartments which were inhabited by civilians with the title of the apartments owned by the Housing Fund (“ПУИГ”) which were inhabited by servicemen. Thereby, the servicemen were able to exercise the right under the Z.S.O.J.N.A. to purchase the apartments at a reduced price. However, this exchange was limited and concerned only six apartments owned by the Housing Fund and twenty owned by the Ministry. No details were provided as to the criteria concerning the exchange.
In 1993 an amended version of the 1990 Law on the Sale of Socially Owned Apartments (Закон за продажба на станови во општествена сопственост) (“the Z.P.S.O.S.”) was promulgated in the Official Gazette. Under the law their tenants were entitled to purchase them on credit and at a beneficial price. Unlike the Z.S.О.J.N.A., the law did no provide for a price adjustment for the amount of the paid contributions for the construction of “socially owned” apartments and for development of the construction land, despite the fact that the tenants had also paid them.
On 26 June 1996 the Constitutional Court abrogated the Z.S.O.J.N.A. without retroactive effect and the respective Government’s regulations on the ground that they had been contrary to the 1991 Constitution. In particular, the court stated that: a) the Yugoslav Army, its “housing fund” and the “social ownership” no longer existed; b) the 1991 Constitution had abolished all the privileges enjoyed by the army servicemen; and c) the Z.S.O.J.N.A. had created an unequal treatment in comparison to the citizens who were entitled to purchase their apartments under the Z.P.S.O.S. The S.P.O.V.P.N.T.R.M. was not mentioned in the Constitutional Court’s decision.
2. The applicant’s request to purchase his rented apartment
In 1992 the applicant requested the Macedonian Ministry of Defence to allow him to purchase the apartment owned by the Macedonian Government at a reduced price or to give him another apartment which used to be owned by the Former Yugoslav Army. On an unspecified date the applicant asked the Ministry of Defence to speed up the proceedings. On 4 December 1993 the Ministry informed him that it had been waiting for the Council of Ministers to settle the issue.
On 20 October 1993 the applicant and fifteen other persons asked the Constitutional Court to examine the compatibility of the Z.P.S.O.S. and the relevant regulations issued by the Ministry of Defence with the Z.S.O.J.N.A. (see the relevant domestic law). On 29 December 1993 this was refused by the Constitutional Court.
On 4 December 1993 the applicant instituted proceedings before the Skopje Municipal Court (Општински суд) against the Former Yugoslav Republic of Macedonia, requesting that the apartment be sold to him at a reduced price in accordance with section 21(2) of the 1990 Z.S.О.J.N.A.. On 15 March 1994 the court granted the applicant’s request. The court held, inter alia, that the applicant, as a retired army serviceman, was entitled under sections 21(2) and 26 of the Z.S.О.J.N.A. to purchase the apartment at a reduced price. The court stated in particular that the purchase price should be reduced by the re-evaluated amount of the monthly contributions which the applicant had paid to the Federal Ministry of Defence for the construction of apartments and for the improvement of construction land. Whether the apartment had belonged to the Ministry of Defence or to the Council of Ministers was irrelevant as both apartments now belonged to the single State-owned housing fund.
The Attorney-General acting for the Former Yugoslav Republic of Macedonia appealed against the above decision on the ground that there was no formal agreement between the Federal Army and, at that time, the Macedonian Governing Council for an exchange of the apartments and that the applicant had given up the apartment owned by the army for a bigger apartment owned by the Governing Council. Therefore, he had accepted that the apartment in question would be subject to different statutory rules. It further stated that the Z.S.О.J.N.A. had been applicable only to the apartments owned by the former Yugoslav Army which had later become property of the Macedonian Government, but not to other apartments.
On 31 March 1995 the Appellate Court (Окружен суд) dismissed the appeal on the grounds that an exchange of the right to use the apartments between the former Federal Army and the Macedonian Governing Council had taken place; that the applicant, as a former officer of the Yugoslav Army had paid contributions for the construction of army apartments and was therefore entitled to purchase an apartment at a reduced price under sections 21(2) and 26 of the Z.S.О.J.N.A.; and that its section 26 had explicitly regulated the cases of purchase of an apartment by an army serviceman that had not been owned by the army.
On 4 May 1995 the Attorney-General lodged an appeal on points of law with the Supreme Court (Врховен суд) alleging, inter alia, that since the day of independence it had been for the Former Yugoslav Republic of Macedonia to regulate the use and purchase of the apartments owned by the former Yugoslav Army and that the agreement which had been concluded with the army could not have been applicable to the apartments not owned by the said army. In 1992 the Council of Ministers enacted a regulation which had made clear that the Z.S.O.J.N.A. applied only to sale-purchase agreements for the apartments previously owned by the former Yugoslav Army.
On 16 October 1997 the Supreme Court granted the appeal on points of law and dismissed the applicant’s request to purchase the apartment at a reduced price. It found that the 1990 Z.S.O.J.N.A. had provided for more beneficial conditions for the sale of apartments to the army servicemen, and that it had governed the relations and status of the former Yugoslav army and its housing fund, both of which had ceased to exist. The court held, inter alia, that as the Former Yugoslav Republic of Macedonia was not a legal successor of the former Yugoslav Army, it was under no obligation whatsoever to cover for the price difference. In addition, the new Macedonian Constitution had abolished special privileges of the army servicemen. The court did not mention at all the decision of the Constitutional Court nor it mentioned the S.P.O.V.P.N.T.R.M..
The applicant was served with the decision on 16 March 1998.
B.Relevant domestic law
1. Constitutional Law on Implementation of the Constitution (Уставен закон за спроведување на Уставот на Република Македонија) of 17 November 1991
Article 4 provides that all issues of succession arising out of the breakup of Yugoslavia shall be regulated by way of treaties with the other former republics. The succession issues following the breakup of the Former Yugoslavia are still not resolved.
Article 5 §§ 1 and 4 provides that the existing federal laws of the former Yugoslavia shall be in force in the Former Yugoslav Republic of Macedonia with the exception of laws regulating the organisation and competence of the Yugoslav federal organs.
Article 6 provides that all federal laws which are inconsistent with the Macedonian Constitution shall be amended accordingly within one year from the day when the Constitution was promulgated.
2. 1990 Law on Housing of the Army Servicemen (Закон за станбено обезбедување во ЈНА) enacted by the Federal Assembly of Former Yugoslavia (“the Z.S.O.J.N.A.”)
Section 1 provides that this Law regulates the housing of present and former Yugoslav Army servicemen and their families.
Section 21 § 1 provides that the purchase price for an apartment owned by the Yugoslav Army shall be determined on the basis of the apartment’s re-assessed construction value, its quality, equipment, location and other similar factors. The price thus determined shall be reduced by the amortisation of the apartment, but not more than 50% of the total amount of amortisation.
Section 21 § 2 provides that when an apartment is purchased by an active or retired army serviceman, the purchase price shall be reduced by the adjusted (re-assessed) amount of the monthly contributions paid by the servicemen for construction of army apartments and improvement of construction land.
Section 26 provides that when an army serviceman mentioned in Section 21 § 2 wishes to purchase an apartment which is not owned by the army, the army shall pay to the owner of the apartment the price difference between the adjusted and the normal purchase price.
3. Agreement for Settlement of Claims and Obligations in Respect of Real Property (Спогодба за правата и обврските во врска со примопредажбата на недвижностите на територија на Република Македонија) of 28 February 1992 (“the S.P.O.V.P.N.T.R.M.”)
According to Section 2 § 2 of that agreement, concluded between the Macedonian Ministry of Defence and the former Yugoslav Army, army apartments should be sold to army servicemen under the conditions set forth in the 1990 former Yugoslav Law on the Housing of the Army Servicemen (Z.S.O.J.N.A.). Section 9 of the said agreement provides that the former Yugoslav Army shall not have any right to impose further obligations on the Macedonian Ministry of Defence after the signing of the agreement. Section 10 provides that all other rights and obligations which the former Yugoslav Army had on the territory of the Former Yugoslav Republic of Macedonia until 28 February 1992 in connection with real property, housing fund and business premises owned by it shall be transferred to the Macedonian Ministry of Defence.
4. 1992 Law on Defence
Section 134 of the Law on Defence (Закон за одбрана) provides that real property that was owned by the former Yugoslav Ministry of Defence on the territory of the Former Yugoslav Republic of Macedonia shall become the property of the Former Yugoslav Republic of Macedonia.
5. Code of Civil Procedure
Article 381 § 1 of the Code of Civil Procedure (Закон за парнична постапка) provides that when the Supreme Court (Врховен суд) finds that the substantive provisions of an act are wrongly applied by the lower courts, it shall grant the appeal on points of law (ревизија) and deliver a judgement on the merits.
COMPLAINTS
The applicant complained that, as a result of the Supreme Court’s decision stating that the Former Yugoslav Republic of Macedonia was not a successor of the former Yugoslav Army in respect of the obligations under the Z.S.O.J.N.A. and, therefore, not under an obligation to pay the price difference for the purchase of his apartment, he had been the victim of a violation of Article 1 of Protocol No. 1 to the Convention. The applicant also submitted with reference to Article 14 of the Convention that he was discriminated against in comparison to other former Yugoslav Army servicemen.
THE LAW
The applicant complained that he had been a victim of a breach of Article 1 of Protocol No. 1 to the Convention. He also argued that he had been discriminated against in breach of Article 14 of the Convention.
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.”
The Government submitted that Article 1 of Protocol No. 1 to the Convention was not applicable to the present case. It could not be considered that the applicant had had a “legitimate expectation” of purchasing an apartment at a reduced price on the ground that he had paid monthly contributions for the construction of the military apartments and for the land planing. These contributions had been paid by all the citizens of the former Yugoslavia on the basis of solidarity and most of them had never had the privilege to live in “socially or army owned apartments” and to purchase them.
Furthermore, taking into consideration the fact that the sale of the apartment had involved contractual relationship between the applicant and the State and that the only issue to settle in the instant case had been the issue of the price, the Government considered that Article 1 of Protocol No. 1 was not applicable. The State did not have any obligation, under this Article, to assist a private person to acquire goods at a reduced price. On the other hand, the applicant had been entitled to purchase the apartment where he had been living as a tenant under the Z.P.S.O.S.
The Government maintained that the Z.S.O.J.N.A. had been an act of the Former Federation and, being incompatible with the 1991 Constitution, it had been abrogated by a decision of the Constitutional Court. The Government’s regulations issued in connection with the terms for sale of the apartments transferred by the former Yugoslav army had also been abrogated. Furthermore, even if it had not been abrogated, it would not have applied in the applicant’s case. Although the applicant had been a former army serviceman, the apartment in question had not been owned by the former Yugoslav Army. Therefore, the Z.S.O.J.N.A. had not imposed any obligations on the Government to sell the apartment to him at a price reduced by the amount that he had paid for the construction of the military apartments and land planning, as the owner of the applicant’s apartment had been the Macedonian State.
They stated that the applicant had freely accepted the exchange of the apartments as he had sought a bigger apartment, thereby freely accepting the change in the ownership and the different statutory rules resulting from that.
The applicant submitted that as an army serviceman he had had to allocate 4.5-6% from his salary for the construction of army apartments like the other 7,800 former servicemen who had purchased the apartments at a reduced price. In addition, 50 % of his monthly rent had been paid to the civil Local Housing Unit (SIZ).
The applicant maintained that he had been deprived of his right to purchase the apartment at a reduced price. He could not have reasonably foreseen that the Socialist Federal Republic of Yugoslavia (SFRY) would fall apart and that he would be deprived of the right to purchase the apartment at a reduced price, unlike other former servicemen who had exercised their right.
The applicant submitted that in 1982 when he had consented to the exchange of the apartments, all the apartments had been “socially owned” thereby governed by the same statutory rules on the ownership. He had not been aware of the risk that the rules might be changed. The statutory rules on the ownership had changed in 1992 when the ownership of the “socially owned” apartments had been transferred to a single housing-fund owned by the State. The Ministry of Defence and the Ministry of Urban Planning and Construction had only been vested with the right to manage the State housing fund on behalf of the State.
The applicant further considered that since there had been a valid law governing his rights in regard to the purchase of the apartment, i.e., the Z.S.O.J.N.A., he could not have been deprived of this right on the basis of the Government regulations.
The applicant submitted that the Government had not clarified why the Z.S.O.J.N.A. had not been harmonised with the Constitution immediately but had been applied for five years. It had also not been clarified why the law had not been abrogated with the adoption of the Z.P.S.O.S.
In the applicant’s opinion it had been clear that the applicable law in his case had been the Z.S.O.J.N.A. which had provided that the army would make-up for the price difference for the purchase of the apartments which had not been in its possession. The former Yugoslav Republic of Macedonia had been one of the legal successors of the SFRY, thus, it took over its rights and obligations. Moreover, under Section 134 of the Law of Defence and Section 10 of the Agreement for Settlement of Claims and Obligations in Respect of Real Property all other rights and obligations of the former Yugoslav Army on the territory of the Former Yugoslav Republic of Macedonia in connection with real property had been transferred to the Macedonian Ministry of Defence. Therefore, the Ministry of Defence had been obliged to make-up for the price difference.
The Court finds that the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. It cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.
For these reasons, the Court, unanimously
Declares the remainder of the application admissible without prejudging the merits.
Erik FriberghChristos Rozakis
Registrar President
Full & Egal Universal Law Academy