Case No.: CH/97/60, CH/98/276, CH/98/287, CH/98/362 and CH/99/1766
Applicant: Andrija MIHOLIC, Bozo CORAPOVIC, Milorad CIRIC, Dusan RISTIC and Mihajlo BUZIC
Respondent Party: Bosnia and Herzegovina and Federation of Bosnia and Herzegovina
Other Title: "3a JNA Case"
Date Delivered: 7 December 2001

DECISION ON ADMISSIBILITY AND MERITS

Factual Background

These cases concern the attempts of the applicants, who were members of the Yugoslav National Army ("JNA"), to regain possession of apartments in Bosnia and Herzegovina. All of the applicants entered into purchase contracts with the JNA for apartments sometime between November 1991 and March 1992. All of the applicants initiated administrative proceedings before the relevant authorities to regain possession of the respective apartments. In all of these cases, the relevant authorities denied their requests for repossession. In three cases, the applicants had appeals pending before cantonal courts. The applicants were unable to repossess their apartments as a result of the application of Article 3a of the Law on Cessation of the Application of the Law on Abandoned Apartments ("Article 3a") in connection with Article 39e of the Law on the Sale of Apartments with an Occupancy Right.

Article 3a prevents persons who were in active military service with the JNA on 30 April 1991, who were not citizens of Bosnia and Herzegovina as of that date, and who had not been granted refugee or other equivalent protective status in a country outside of the former Socialist Federal Republic of Yugoslavia ("SFRY") from repossessing apartments in Bosnia and Herzegovina. Additionally, persons who remained in active military service of any armed forces outside the territory of Bosnia and Herzegovina after 14 December 1995 are barred from repossessing apartments in Bosnia and Herzegovina. At the time of consideration, applicants had applications pending before the Commission for Real Property Claims of Displaced Persons and Refugees ("CRPC").

Admissibility

The Chamber noted that the matters the applicants complained of were not within the responsibilities of Bosnia and Herzegovina. However, the Chamber found that the applicants' claims, at their inception, stemmed from a 22 December 1995 Decree, which annulled all JNA contracts and which was issued by the Presidency of the Republic of Bosnia and Herzegovina and adopted as law by the Assembly of the Republic. As the applicants alleged that the effects of that Decree had been ongoing, the Chamber declared the applications admissible with respect to Bosnia and Herzegovina.

As for the Federation, the Chamber first held that, Article 3a being a provision of the Federation law, the Federation was the appropriate respondent Party for allegations of violations resulting from the application of Article 3a by Federation authorities. Second, the Chamber noted that even if the applicants had sought to avail themselves of further domestic remedies available to them, they would have had no prospect of success, and thus that the applicants could not be required to exhaust any further domestic remedies. Third, the Chamber recalled its prior decision that applicants' pending claims before the CRPC did not preclude the Chamber from examining the applications. Thus the Chamber declared the application admissible against the Federation.

Merits

Article 1 of Protocol No. 1

The Chamber recalled that the rights under a contract to purchase an apartment concluded with the JNA constituted "possessions" for the purposes of Article 1 of Protocol No. 1. Next, the Chamber found that the effect of the Decree of 22 December 1995 was to annul the applicants' rights under their purchase contracts, and that the Law on Cessation and the Law on Sale of Apartments with an Occupancy Right continued to deprive the applicants of their rights. Thus, each applicant was "deprived of his possessions" and received differential treatment. Next, even if the reasons given by the Federation for this deprivation were "legitimate aims," the Chamber would need to find a reasonable relationship of proportionality between the means employed and the aims sought to be realised in order not to find a violation.

After a close examination of the provisions of Article 3a, the Chamber considered that there was no reasonable relationship of proportionality with respect to the differential treatment experienced by the applicants and the accomplishment of the Federation's stated goals. Therefore, the Chamber found that Bosnia and Herzegovina had violated the applicants' rights under Article 1 of Protocol No. 1, and that the Federation had violated the applicants' right under Article 1 of Protocol No. 1 and had discriminated against them in the enjoyment of this right.

Article 8 of the Convention

In view of its finding under Article 1 of Protocol No. 1 the Chamber found it unnecessary to examine whether there had also been
a violation under Article 8.

Article 6 of the Convention

In view of its decision concerning Article 1 of Protocol No. 1 and discrimination in enjoyment of the rights protected therein, the Chamber considered that it was not necessary to examine the cases under Article 6.

Article 13 of the Convention

In view of its decision concerning Article 1 of Protocol No. 1 and discrimination in the enjoyment of the rights protected therein, the Chamber considered that it did not have to examine the cases under Article 13.

Remedies

The Chamber ordered the Federation to take all necessary steps to render ineffective the annulments of the contracts of all five applicants, and to allow for registration of ownership of their apartments. For two of the applicants, the Chamber ordered the Federation to take all necessary steps to enable them to regain possession of their apartments.

Dissenting/Concurring Opinions

Mr. Manfred Nowak, joined by Ms. Michèle Picard, attached a partly dissenting opinion in which he disagreed with the finding that the interference with the right to property of the applicants who had remained in the active service of the JNA during the war and in active service of the Army of Federal Republic of Yugoslavia subsequently was unproportional or even discriminatory. Mr. Nowak argued that such an interference fell within the broad margin of appreciation which governments enjoy under Article 1 of Protocol No. 1.

Mr. Hasan Balic attached a partly dissenting opinion in which he argued that the respondent Party, for the purpose of protection of legitimate interests of its citizens and the rights to its property which was still socially owned property, was entitled to pass legislation that would protect such property until it was accessible to all the citizens under equal footing; and that three of the applicants had not suffered discrimination in their right to peaceful enjoyment of possessions.

Mr. Dietrich Rauschning attached a concurring opinion in which he argued that it was conceivable that some of the applicants had ownership of the apartments but were not entitled to use them.

Decision adopted 9 November 2001
Decision delivered 7 December 2001

DECISION ON REQUEST FOR REVIEW

As of 31 December 2001, the decision on request for review had not been decided.