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MINISTERS’ DEPUTIES |
Notes on the Agenda |
CM/Notes/1419/H46-6 |
2 December 2021 |
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1419th meeting, 30 November – 2 December 2021 (DH) Human rights
H46-6 Dokić and Mago and Others v. Bosnia and Herzegovina (Application Nos. 6518/04 and 12959/05) Supervision of the execution of the European Court’s judgments Reference documents |
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Application |
Case |
Judgment of |
Final on |
Indicator for the classification |
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12959/05+ |
MAGO AND OTHERS |
03/05/2012 |
24/09/2012 |
Case description
These cases concern violations of the applicants’ right to peaceful enjoyment of their property on account of their inability to repossess their pre-war military flats between 1998-2007 in the Federation of Bosnia and Herzegovina (“Federation”) (violations of Article 1 of Protocol No. 1).
The European Court found that, pursuant to the Federation laws (namely, Section 39e of the Privatisation of Flats Act 1997 and Section 3a of the Restitution of Flats Act 1998), those who had served in the armed forces of the successor States of the former Yugoslavia and, in reality, almost exclusively those who had served in the armed forces of the former Yugoslavia, were not entitled to repossess their flats nor to register their title, (Đokić, § 37). The European Court highlighted in that respect that there was no indication that the applicants in these cases participated in any war crimes in Bosnia and Herzegovina. The Court concluded that under the above-mentioned laws, the applicants had been treated differently merely because of their service in the armed forces of former Yugoslavia and on the ground of their ethnic origin (Đokić, § 60; Mago and Others, § 103).
Legal status of the applicants’ flats: The applicant in Đokić was prevented under the applicable legislation from registering his ownership of the pre-war military flat although he signed a valid purchase contract. The applicants in Mago and Others did not purchase their flats before the war and their occupancy rights were annulled under the above-mentioned provisions.
Status of execution
On 30 September 2021, in their action plan DH-DD(2021)970, the authorities provided information which may be summarised as follows.
Individual measures: The question of individual measures has been resolved, given that the just satisfaction awarded by the European Court was paid on time covering non-pecuniary, as well as pecuniary damage, (the latter reflecting the current market value of the flats).
General measures:
Estimation of the number of persons who are in the same situation as the applicants: The authorities estimate that there are currently about 800 such persons (576 had occupancy rights).
Preparation of legislative amendments: In response to the present judgments, the authorities prepared draft amendments to section 39e of the Privatisation of Flats Act 1997 with a view to introducing a compensation scheme for the individuals concerned. They were approved by the Government of the Federation in October 2018. Pursuant to the draft amendments, compensation amounting to EUR 300 per square metre shall be payable to the pre-war owners of military flats and to those who held occupancy rights to such flats and who have not been granted occupancy rights elsewhere. For further details of this scheme see DH-DD(2021)825 and DH-DD(2017)698.
Last decision of the Committee: At the 1369th meeting (March 2020) (DH), the Committee noted with serious concern the absence of progress with the above draft legislation. The Committee exhorted the authorities to adopt the foreseen legislative reform and to ensure that the amounts of compensation available are in keeping with those awarded by the European Court. Furthermore, following the publicly available information on the decision of the Constitutional Court of Bosnia and Herzegovina of 31 January 2019 in which it found a violation of property rights in a similar case, the Committee invited the authorities to present information on this decision as well as on the follow-up given to this judgment by the lower courts.
Measures taken in response to the Committee’s last decision:
(i) Legislative measures: The draft amendments were approved by the House of Representatives of the Parliamentary Assembly of the Federation in June 2020 but did not receive sufficient support from the House of Peoples of the Parliamentary Assembly of the Federation at its session dated 18 February 2021, thus they were not adopted.
As a result of the government’s call upon the Parliamentary Assembly of the Federation to provide guidelines for further action in this matter, on 27 April 2021 the House of Representatives of the Parliamentary Assembly of the Federation adopted a conclusion, instructing the Government of the Federation to prepare new draft amendments to the Privatisation of Flats Act 1997 and to table them before both Chambers of the Parliamentary Assembly of the Federation. The Secretary of the Government of the Federation therefore instructed the Ministry of Spatial Planning of the Federation to prepare the new draft amendments, as a matter of priority.
(ii) Domestic case-law: Pending the adoption of the draft law, the domestic courts have taken a proactive approach to ensure that the property rights of those in the applicants’ situation are upheld at domestic level. In particular, in its decision of 31 January 2019, the Constitutional Court of Bosnia and Herzegovina found a violation of the complainant’s property rights on account of the failure of the lower courts to comply with their constitutional obligation to directly apply the Convention and the present judgments. The Constitutional Court overturned the lower courts’ judgments (which had rejected the complainant’s claim for compensation calculated on the market value of the flat) and remitted the case to the Supreme Court of the Federation, instructing it to base its calculation on the market value. The Constitutional Court took note of the European Court’s case-law indicating that the lack of a sufficiently precise and foreseeable statutory provision may be remedied by domestic courts giving a clear and precise interpretation. It furthermore noted that in the absence of statutory provisions, the rights protected by the Convention may be adequately protected through consistent case-law of domestic courts. The authorities provided information on similar Constitutional Court decisions adopted in 2020.
In 2019, the Supreme Court of the Federation aligned its jurisprudence with the Convention and the above-mentioned Constitutional Court case law. In particular, the Supreme Court of the Federation, in its judgment of 20 June 2019, which was followed in a number of subsequent judgments, accepted the appellant’s appeal on points of law. It thus reversed the lower courts’ decisions which had rejected the appellant’s claim for compensation on account of his inability to use his pre-war military flat. The Supreme Court of the Federation ordered the competent authorities to pay him compensation corresponding to the market value of his flat. The Supreme Court referred to the above findings of the Constitutional Court highlighting that the amount of compensation was determined taking into account both the European Court’s findings in Đokić and the case-law of the Constitutional Court.
Analysis by the Secretariat
Individual measures: Given the information provided, this question is settled.
General measures: It is recalled that the Committee of Ministers has been following these cases very closely for more than ten years and has so far adopted three decisions calling on the authorities to adopt legislative reform introducing a compensation scheme for persons in a situation similar to the applicants.
It appears that the main stumbling block in the legislative process has been the amount of compensation envisaged in the draft legislation. In particular, the European Court awarded the applicants compensation reflecting the current market value of their pre-war flats, which amounted to EUR 1,000 per square metre, while the compensation envisaged in the draft legislation was significantly lower, at approximately EUR 300 per square metre. At the same time, pursuant to the authorities’ estimate presented in 2016 to the Committee the average price of a flat in Bosnia and Herzegovina was EUR 750 per square metre (see
DH-DD(2016)825).
The developing case-law of the Constitutional Court of Bosnia and Herzegovina and of the Supreme Court of the Federation, which provided compensation corresponding to the market value of the flats, is an important development which has to a certain extent filled the gap and should be welcomed by the Committee. The authorities could be invited to keep the Committee informed about further developments in this respect, including on the lower courts’ case-law and its full alignment with the Court’s judgments.
It appears that the authorities consider that the present judgments require the introduction of legislative amendments to align the relevant provisions of the Privatisation of Flats Act 1997 with the Convention and that the Government of the Federation remains committed to taking steps so that these legislative measures are taken as a matter of priority.
In view of the above, the Committee might wish to invite the authorities to complete the envisaged legislative reform with a view to providing effective redress to all individuals who find themselves in a situation similar to that of the applicants. In so doing they may wish to devote particular attention to the amount of compensation offered to ensure that the awards are reasonably related to the market value of the flats (Đokić § 63; Mago and Others § 101).
The authorities might be encouraged by the Committee to cooperate closely with the Secretariat with a view to ensuring that the compensation scheme introduced is Convention-compliant, and to provide the Committee with information on all of the outstanding issues, including the progress of the relevant legislative work by 31 March 2022 at the latest. That said, in light of the progress achieved in this group of cases, notably the above-mentioned change of the case-law of domestic courts, the Committee might wish to continue examination of these outstanding issues within the context of the standard procedure.
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Financing assured: YES |