in the case of

DUŠAN ERAKOVIĆ v. THE FEDERATION OF BOSNIA AND HERZEGOVINA
(Case No. CH/97/42)

FACTUAL BACKGROUND

The applicant holds an occupancy right over an apartment in Sarajevo. In March 1995 he left the city allegedly in order to seek medical treatment. Shortly thereafter his apartment was declared abandoned under the 1994 Law on Abandoned Apartments ("the old law") and temporarily allocated to a third person. The applicant's sub-tenant was evicted. In November 1996 the apartment was declared permanently abandoned and permanently allocated to the temporary occupant. In July 1998 the applicant received a decision under the 1998 Law on the Cessation of the Application of the Law on Abandoned Apartments ("the new law"), confirming his occupancy right and entitling him to reclaim the apartment. The decision also established that the temporary occupant had obtained a new occupancy right based on a contract signed on 7 January 1998 and had moved into the apartment before 7 February 1998. Pursuant to Articles 3 (6) and 16 of the new law the allocation right holder was therefore ordered to refer the case to the competent cantonal authority within 30 days for a further decision by which either the current occupant or the applicant was to be allocated another apartment. No such decision had yet been made.

FINDINGS OF THE CHAMBER

Article 8 of the European Convention on Human Rights

The Chamber first examined the case under Article 8 of the Convention which guarantees, inter alia, the right to respect for one's home. The Chamber recalled its finding in the Kevešević decision that the provisions of the old law, as applied also in the present case, failed to meet the standards of a "law" for the purposes of Article 8. Accordingly, the Chamber found this provision was violated by virtue of the decision of November 1996 to declare the applicant's apartment permanently abandoned. The Chamber further noted that the applicant's claim for repossession had not yet been finally examined in compliance with the time-limits in Article 3(6) of the new law. There had thus been an ongoing violation of the applicant's right to respect for his home under Article 8 of the Convention in so far as the procedure for examining his repossession claim had not been "in accordance with the law" either.

Article 1 of Protocol No. 1 to the Convention 

The Chamber also examined the case under Article 1 of Protocol No. 1 to the Convention which guarantees the right to the peaceful enjoyment of one's possessions. The Chamber reaffirmed that an occupancy right can be regarded as a "possession" within the meaning of this provision. As in Kevešević, the Chamber found that a decision to declare abandoned an apartment over which someone enjoyed an occupancy right, and the allocation thereof to another person pursuant to the old law, amounted to a de facto expropriation which was not "subject to the conditions provided for by law". Accordingly, Article 1 of Protocol No. 1 was violated by virtue of the decision of November 1996 to declare the applicant's apartment permanently abandoned. Given that his claim for repossession had not been considered in time and finally under the new law, this procedure had not been "subject to the conditions provided for by law" either. Consequently, there had been a continuing violation of the applicant's right under Article 1 of Protocol No. 1.

REMEDIES

The Chamber ordered the Federation to take all necessary steps to process the applicant's repossession claim without further delay, with a view to its being granted and the decision swiftly enforced. The applicant's claim for compensation was rejected by the Chamber. 

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