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Cite as: [2011] ECHR 861
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FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
11683/08
by DESTILACIJA PLC
against Bosnia and Herzegovina
The European Court of Human Rights (Fourth Section), sitting on 17 May 2011 as a Chamber composed of
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Sverre Erik Jebens,
Päivi
Hirvelä,
Ledi Bianku,
Vincent A. De Gaetano,
judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having regard to the above application lodged on 4 February 2008,
Having regard to the observations submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
The applicant is a private company with headquarters in Teslić, Bosnia and Herzegovina. It was represented before the Court by Mr S. Đorđević and Mr S. Mikić, lawyers practising in Doboj. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant company had a right of allocation with respect to a flat in Teslić (as explained below, the allocation right holders were socially owned enterprises and other public bodies which administered socially owned flats in the former Socialist Federal Republic of Yugoslavia). On 29 October 1998 it initiated administrative proceedings for the eviction of D.N. who had remained in the flat after the death of his grandfather.
On 19 February 2001 the competent first-instance administrative body ruled that the occupancy right over the flat could not be transferred to D.N. from his late grandfather and, accordingly, ordered his eviction. On 5 April 2001 and 14 May 2002, respectively, the competent second-instance administrative body and the Supreme Court of the Republika Srpska upheld that decision. D.N. was evicted on 13 September 2002.
On 16 July 2002 D.N. complained to the Human Rights Chamber, a domestic human-rights body, about the outcome of the administrative proceedings mentioned above, relying on Articles 6 and 8 of, and Article 1 of Protocol No. 1 to, the European Convention on Human Rights.
On 8 February 2007 the Constitutional Court of Bosnia and Herzegovina (the legal successor of the Human Rights Chamber) found a violation of D.N.’s right to respect for his home, quashed the Supreme Court decision of 14 May 2002 and ordered that he be reinstated in the flat. The applicant company was informed of that decision through the housing authorities on 12 August 2007.
On 5 September 2007 the Supreme Court, pursuant to the Constitutional Court decision, quashed the decisions of 19 February 2001 and 5 April 2001 and ruled against the applicant company.
It would appear that the applicant company has subsequently agreed to the privatisation of the flat by D.N. under the Privatisation of Flats Act 2000 (see below).
Relevant domestic law and practice
In the former Socialist Federal Republic of Yugoslavia practically all flats were under the regime of “social ownership”. They were generally built by socially owned enterprises or other public bodies for allocation to their employees, who became “occupancy right holders”. The rights of both the allocation right holders (public bodies which nominally controlled the flats) and the occupancy right holders were regulated by law (the Housing Act 1984, which is still in force in Bosnia and Herzegovina1).
In accordance with this Act, an occupancy right, once allocated, entitled the occupancy right holder to permanent, lifelong use of the flat against the payment of a nominal fee. When occupancy right holders died, their rights transferred, as a matter of right, to their surviving spouses or registered members of their family households who were also using the flat (see sections 19 and 21 of that Act). In practice, these provisions on transfer meant that occupancy rights originally allocated by public bodies to their employees could pass, as of right, to multiple generations for whom the initial employment-based link to the allocation right holder no longer existed (for more information about socially owned flats see Đokić v. Bosnia and Herzegovina, no. 6518/04, §§ 5-8, 27 May 2010).
The concept of “social ownership” was abandoned during the 1992-95 war 2. As a result, socially owned flats were effectively nationalised. Under the Privatisation of Flats Act 20003, which entered into force on 2 March 2000, the occupancy right holders were entitled to purchase their flats. Furthermore, the role of the allocation right holders changed. They are now obliged to agree to the privatisation of flats if the occupancy right holder so requests (see section 13 of that Act), or, in the absence of such a request, to let out the flat (section 61(1) of that Act). In both cases, the proceeds (that is, the purchase price or the rent) are to be paid to the Republika Srpska Housing Fund (sections 36 and 40(3) of that Act).
COMPLAINT
The applicant company complained under Article 6 § 1 of the Convention that it was not informed about the Constitutional Court proceedings concerning the impugned flat, over which it had the allocation right, and was therefore not given an opportunity to present its case, contrary to the principle of “equality of arms”.
THE LAW
The Government stated that Article 6 was not applicable, pleading that the proceedings before the Constitutional Court did not concern the applicant company’s civil rights and obligations.
The applicant company disagreed. While admitting that it was not the owner of the flat, it maintained that it could have rented it to one of its employees under the Privatisation of Flats Act 2000.
In accordance with the Court’s case-law, the relevant test in determining whether proceedings come within the scope of Article 6 § 1, even if they are conducted before a constitutional court, is whether their outcome is decisive for the determination of the applicant’s civil rights and obligations (see Süßmann v. Germany, 16 September 1996, § 41, Reports of Judgments and Decisions 1996 IV; and Tričković v. Slovenia, no. 39914/98, § 39, 12 June 2001).
In the present case the dispute involved a flat over which the applicant company did not have ownership. While it had a say in the process of the privatisation of the flat it could not veto that process or gain any pecuniary interest from it.
As regards the applicant company’s argument that it could have let the flat to one of its employees had D.N. not been reinstated, this right cannot be considered to be a “civil right” within the meaning of Article 6 § 1 either, since any rent would have to be paid to the Republika Srpska Housing Fund.
Accordingly, the proceedings before the Constitutional Court were not decisive for the determination of the applicant company’s civil rights and obligations. Article 6 therefore does not apply.
It follows that the application, as submitted to the Court, is incompatible ratione materiae with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares application inadmissible.
Fatoş Aracı Nicolas Bratza
Deputy
Registrar President
1. Zakon o stambenim odnosima, Official Gazette of the Socialist Republic of Bosnia and Herzegovina nos. 14/84, 12/87 and 36/89, Official Gazette of the Republic of Bosnia and Herzegovina no. 2/93, Official Gazette of the Federation of Bosnia and Herzegovina nos. 11/98, 38/98, 12/99 and 19/99, and Official Gazette of the Republika Srpska nos. 19/93, 22/93 and 12/99.
2. Zakon o prenosu sredstava društvene u drZavnu svojinu, Official Gazette of the Republika Srpska nos. 4/93, 29/94, 31/94, 9/95, 19/95, 8/96 and 20/98.
3. Zakon o privatizaciji drZavnih stanova, Official Gazette of the Republika Srpska nos. 11/00, 11/00, 18/01, 35/01, 47/02, 65/03, 17/04, 70/04, 2/05, 67/05, 118/05, 70/06, 38/07, 60/07, 59/08, 58/09 and 71/10.