JAKOVLJEVIĆ A OSTATNÍ proti Bosně a Hercegovině

FOURTH SECTION

DECISION

Application no. 9544/12
Slobodan JAKOVLJEVIĆ
against Bosnia and Herzegovina
and 11 other applications
(see list appended)

The European Court of Human Rights (Fourth Section), 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 applications 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”) between 21 December 2011 and 10 May 2017 (see the appended table);

the decision to give notice of the complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Government of Bosnia and Herzegovina (“the Government”), represented by Ms J. Cvijetić, their Acting Agent, and to declare inadmissible the remainder of the applications;

the parties’ observations;

the written comments submitted by the Serbian Government, who were invited to intervene by the President of the Section (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court).

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. When Bosnia and Herzegovina declared independence, the applicants (in case no. 73993/13, the applicant’s late husband) were employed with the army of the Socialist Federal Republic of Yugoslavia. Being stationed in the territory of Bosnia and Herzegovina, they were allocated military flats there. Some applicants bought their flats shortly before the 1992-95 war (compare Đokić v. Bosnia and Herzegovina, no. 6518/04, 27 May 2010), whereas the others did not (compare Mago and Others v. Bosnia and Herzegovina, nos. 12959/05 and 5 others, 3 May 2012). All applicants left their flats when the war started and joined foreign armed forces. For that reason, their restitution claims were rejected after the war (pursuant to section 3a of the Restitution of Flats Act 1998). On various dates, the Constitutional Court of Bosnia and Herzegovina found a violation of the applicants’ right to the peaceful enjoyment of their pre-war military flats. While considering that it was not disproportionate to reject their restitution claims, the Constitutional Court held that those who had purchased their military flats before the war as well as those who had not, but who had not acquired a military flat in another State, must be given fair compensation.

THE COURT’S ASSESSMENT

1. Joinder of the applications

2. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

2. Alleged violation of Article 1 of Protocol No. 1 to the Convention

3. The applicants complained under Article 1 of Protocol No. 1 to the Convention about their inability to have restored to them their pre-war flats in Bosnia and Herzegovina. It transpires from the documents submitted by the respondent Government and the Serbian Government, who were invited to intervene by the President of the Section under Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court, that the applicants’ right to a flat had been established by the military authorities in Serbia. In order to qualify for this right, they were required to renounce the right to their pre-war military flats in Bosnia and Herzegovina (see Aleksić v. Bosnia and Herzegovina (dec.), no. 38233/05, § 19, 3 February 2015), and did so. Therefore, the fact that some of the applicants have not yet been allocated a flat in Serbia is of no relevance (ibid., § 26). In any event, in accordance with the decisions of the Constitutional Court in their favour (see paragraph 1 above), the applicants who had purchased their flats in Bosnia and Herzegovina are entitled to fair compensation.

4. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

3. Alleged violation of Article 8 of the Convention
   1. The case of Mr Mandžo

5. Unlike the other applicants in the present case, Mr Abdulah Mandžo was reinstated into his pre-war flat in 2008. Although the order to reinstate him was quashed in 2010 pursuant to section 3a of the Restitution of Flats Act 1998 (since the applicant had joined foreign armed forces during the war), the applicant has stayed in the flat to date on the basis of an interim measure issued by the Constitutional Court. He complained that his eviction from that flat would amount to a violation of Article 8 of the Convention.

6. In accordance with the interim measure issued by the Constitutional Court, the applicant cannot be evicted from the flat at issue until the relevant authorities have established a compensation scheme for this type of cases, setting out, inter alia, the eligibility criteria, and have decided whether the applicant meets any such criteria. A purely hypothetical and future risk that the applicant may be evicted is not sufficient to confer victim status on him within the meaning of Article 34 of the Convention (compare Berger-Krall and Others v. Slovenia, no. 14717/04, § 259, 12 June 2014). If and when the authorities decide to evict him, the applicant may lodge a fresh application with the Court, after having exhausted all effective remedies at the domestic level as required by Article 35 § 1 of the Convention.

7. Accordingly, this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention and must be rejected in accordance with Article 35 § 4.

2. The cases of Mr Jakovljević and Mr Miladinović

8. Mr Slobodan Jakovljević and Mr Jovo Miladinović also relied on this Article, but there is no indication in the case file that they intend to resettle in Bosnia and Herzegovina. This is confirmed by the fact that, in their submissions before this Court, the applicants expressly agreed to compensation in lieu of restitution. The Court accordingly does not find that the facts of their cases are such as to disclose any present interference with the applicants’ right to respect for their home (see Đokić, cited above, § 66, and Mago and Others, cited above, § 109).

9. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 20 January 2022.

Ilse Freiwirth Tim Eicke
Deputy Registrar President

APPENDIX