CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 27 mai 2010

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Bosnia and Herzegovina (no. 6518/04)   MILITARY SCHOOL LECTURER’S INABILITY TO REPOSSESS HIS PRE-WAR FLAT IN SARAJEVO BREACHED THE CONVENTION   Unanimously   Violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights   Principal facts   The applicant, Branimir Đokić, is a citizen of Bosnia and Herzegovina and Serbia who was born in 1960 in Serbia. He currently lives in Niš (Serbia).   The case concerned Mr Đokić’s failed attempts to repossess a flat – and be registered as its owner – he had bought in Sarajevo and which he left following the outbreak of the 1992-1995 war in Bosnia and Herzegovina [2] .   In 1986 Mr Đokić, working as a lecturer at a military school based in Sarajevo, was allocated a military flat, one of the around 16,000 flats nominally controlled at that time in Bosnia and Herzegovina by the armed forces of the Socialist Federal Republic of Yugoslavia (“the JNA”). These military flats were part of a more generalised scheme of “social ownership” under which socially owned enterprises or other public bodies allocated flats to their employees, who thus acquired an “occupancy right” entitling them to permanent, lifelong use of a flat against payment of a fee.   On 9 March 1992 Mr Đokić bought the flat under the Military Flats Act 1990 which allowed JNA members to purchase their flats at a discount on their market value. Although he paid the full purchase price, the local authorities refused to register his title to the property as, from 18   February 1992, the sale of military flats had been put on hold in the territory of Bosnia and Herzegovina.   At around the same time, a brutal war had started in Bosnia and Herzegovina following its declaration of independence. More than 2.2 million people left their homes as a consequence of “ethnic cleansing” or generalised violence. The JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992 and, as a result, Mr Đokić’s military school was transferred to Serbia. Mr Đokić followed, thus joining the armed forces of the Federal Republic of Yugoslavia (“the VJ forces”).   After the war, in August 1998, Mr Đokić made an application to repossess his flat in Sarajevo under the Restitution of Flats Act 1998. His application was rejected in March 2000 under section 3a of that Act according to which only those who could prove that they were genuine refugees or displaced persons were entitled to return to their pre-war homes. Although repealed in July 1999 by the High Representative [3] , that restriction remained in force as regards military flats owned by those who served in the successor states of the SFRY (the Socialist Federal Republic of Yugoslavia), and in reality, by almost exclusively those, like the applicant, who served in the VJ forces. The rejection of Mr Đokić’s application was ultimately upheld by the Supreme Court of the Federation of Bosnia and Herzegovina [4] in December 2006.   In July 2002 the restitution commission set up under the Dayton Peace Agreement 4 , before which Mr   Đokić pursued parallel proceedings, declined jurisdiction as it found that he was neither a refugee nor a displaced person.   In the meantime, Mr Đokić had also applied to the Human Rights Commission, a domestic human-rights body. In March 2006 the Commission found that his inability to repossess the flat and to be registered as its owner had amounted to an interference with the peaceful enjoyment of his possessions under Article   1   of Protocol No.   1 to the European Convention. However, it held that his service in the VJ forces after the war demonstrated his disloyalty to Bosnia and Herzegovina and that, given the serious shortage of housing and the fact that he was entitled to compensation, the interference had been justified.   To date Mr Đokić, unable to repossess his flat in Sarajevo, has not been allocated a flat in Serbia either; he receives a rent allowance of approximately 100 euros (EUR) from the Serbian authorities.   Complaints, procedure and composition of the Court   Relying in particular on Article   1   of Protocol No.   1 (protection of property) and Article   14 (prohibition of discrimination), Mr Đokić complained about his inability to repossess his flat and to be registered as its owner, despite having a legally valid purchase contract.   The application was lodged with the European Court of Human Rights on 9 December 2003.   Third party comments were received from the Serbian Government.   Judgment was given by a Chamber of seven judges, composed as follows:   Nicolas Bratza (the United Kingdom), President , Giovanni Bonello (Malta), Ljiljana Mijović (Bosnia and Herzegovina), David Thór Björgvinsson (Iceland), Ján Šikuta (Slovakia), Ledi Bianku (Albania), Mihai Poalelungi (Moldova), judges , and also Fatoş Aracı , Deputy Section Registrar .   Decision of the Court   Firstly, the Court noted the strong local opposition to those who served in the VJ forces, like the applicant, returning to their pre-war homes. Such opposition could be explained by evidence of the VJ forces’ direct and indirect participation in military operations in Bosnia and Herzegovina, such as occurred throughout the war in Sarajevo in the form of blockades, day-to-day shelling and sniping. It did not, however, justify it. Moreover, there was no indication that the applicant had participated, as part of the VJ forces, in any military operations in Bosnia and Herzegovina, let alone in any war crimes. He was treated differently merely because of his service in those forces. Indeed, it is well known that the nature of the recent war in Bosnia and Herzegovina was such that service in certain armed forces was to a large extent indicative of one’s ethnic origin, be it Bosniac [5] , Croat or Serb. Accordingly, the contested legislation, although apparently neutral, had the effect of treating people differently on the ground of their ethnic origin, a situation which the Court, as a matter of principle, could not objectively justify in a contemporary democratic society.   As concerned the Government’s argument that the contested legislation had been justified in view of the scarce housing space and a pressing need to accommodate destitute members of the local armed forces (in particular the Army of the Republic of Bosnia and Herzegovina, the “ARBH”, mostly made up of Bosniacs) and their families in the aftermath of the 1992-95 war, the Court observed that the statistics provided did not demonstrate that the freed housing space was in fact used to accommodate those who were deserving of protection. The figures simply confirmed that most military flats had been allocated to war veterans, war invalids and families of killed members of the ARBH forces, without indicating their housing situation or their income. Moreover, according to reliable reports, many high-ranking officials whose housing needs had otherwise been met were nevertheless allocated military flats.   As regards the possibility for the applicant to acquire a tenancy right in Serbia, he has not actually been allocated a flat there and, following the introduction of a new housing act in Serbia in 1992, can only acquire a tenancy right of limited duration, which, according to the Bosnian courts, does not amount to an occupancy right under the restitution legislation.   Lastly, the Court considered that neither the compensation to which the applicant could be entitled – as assessed by the Government, namely 10,750 euros (EUR) – nor the refund calculated since 2006 of the amount paid for the Sarajevo flat plus interest – that is, less than EUR 3,500 – were reasonably related to the flat’s market value.   The Court therefore concluded that a fair balance had not been struck between Mr Đokić’s right to protection of property and the requirements of public interest, in violation of Article 1 of Protocol No. 1.   The Court further held that there was no need to examine separately Mr Đokić’s complaint under Article 14 in conjunction with Article 1 of Protocol No. 1.   Under Article 41 (just satisfaction), the Court awarded the applicant EUR 60,000 in respect of pecuniary damage, EUR   5,000 in respect of non-pecuniary damage and EUR 200 for costs and expenses.   The judgment is available only in English.   ***   The press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site ( www.echr.coe.int ). To receive the Court’s press releases, you can subscribe to the Court’s RSS feeds .   Press contacts [email protected]   or Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] Although the respondent State was called “the Socialist Republic of Bosnia and Herzegovina” until 8 April 1992 and “the Republic of Bosnia and Herzegovina” from 8 April 1992 until 14 December 1995, the name “Bosnia and Herzegovina” is nevertheless used in this press release when referring also to the period before 14 December 1995. [3] Following the war in Bosnia and Herzegovina, the United Nations Security Council authorised the establishment of an international administrator for Bosnia and Herzegovina, called the High Representative. [4] On 14   December 1995 the General Framework Agreement for Peace in Bosnia and Herzegovina, (“the Dayton Peace Agreement”) entered into force which put an end to the 1992-95 war in Bosnia and Herzegovina. Under that Agreement, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. [5] Bosniacs were known as Muslims until the 1992-95 war. The term “Bosniacs” ( Bošnjaci ) should not be confused with the term “Bosnians” ( Bosanci ) which is commonly used to denote citizens of Bosnia and Herzegovina irrespective of their ethnic origin.