in the case of

DUŠANKA ONIĆ v. THE FEDERATION OF BOSNIA AND HERZEGOVINA
(Case No. CH/97/58)

FACTUAL BACKGROUND

The applicant holds an occupancy right over an apartment in Sarajevo. Following a visit to Grbavica in May 1992 she was unable to return to her apartment due to the hostilities. In 1993 the apartment was declared abandoned and temporarily allocated to L.O. In 1996 the applicant's claim for repossession of the apartment was rejected as being out of time in application of the 1994 Law on Abandoned Apartments. In July 1998 the applicant received a decision under the 1998 Law on the Cessation of the Application of the Law on Abandoned Apartments, confirming her occupancy right, entitling her to repossess the apartment and ordering L.O.'s eviction within 90 days. L.O. was nevertheless considered to be in need of alternative accommodation pursuant to Article 3(5) of the 1998 Law. The applicant's enforcement request of September 1998 was in vain.

FINDINGS OF THE CHAMBER

Article 8 of the European Convention on Human Rights

The Chamber found that the authorities' refusal to allow the applicant to return to her apartment was an ongoing interference with her right to respect for her home within the meaning of Article 8 of the Convention. The Chamber recalled its finding in the Kevešević decision that the provisions of the 1994 Law, as applied also in the present case, had failed to meet the standards of a "law" for the purposes of Article 8. As to the application of the 1998 Law, the Chamber noted that the decision of 4 July 1998 had confirmed the applicant's occupancy right and had ordered L.O. to vacate the apartment within 90 days. The decision in the applicant's favour had not yet been executed. However, the Chamber did not find it established that the applicant had been notified, at least 30 days before the end of L.O.'s 90-day period for vacating the apartment, of any documented exceptional circumstances warranting an extension of the latter time limit pursuant to Article 7(3) of the 1998 Law. Accordingly, the procedure under the 1998 Law had not been "in accordance with the law" either. In sum, Article 8 of the Convention had been violated, given both the refusal under the 1994 Law to allow the applicant to return to her apartment and the failure to execute the decision of July 1998 pursuant to the 1998 Law entitling her to return to that dwelling.

Article 1 of Protocol No. 1 to the Convention

The Chamber reaffirmed that an occupancy right can be regarded as a "possession" within the meaning of Article 1 of Protocol No. 1 to the Convention which guarantees the right to the peaceful enjoyment of one's possessions. As in Kevešević, the Chamber found that a decision to declare abandoned an apartment over which someone enjoys an occupancy right, and the allocation thereof to another person pursuant to the 1994 Law, amounted to de facto expropriation which was not "subject to the conditions provided for by law" as required by Article 1 of Protocol No. 1. Accordingly, this provision had been violated by the authorities' effective refusal under the 1994 Law to recognise the applicant's occupancy right and to allow her to return to her apartment. The Chamber further found that the non-enforcement of the decision of July 1998 entitling the applicant to return to her apartment had not been "subject to the conditions provided for by law" either, which was also in violation of Article 1 of Protocol No. 1.

REMEDIES

The Chamber ordered the Federation to take all necessary steps to enable the applicant to return swiftly to her apartment.

Mr. Vlatko Markotić and Mr. Želimir Juka attached a Concurring Opinion to the decision.